Petition — British European Airways v. Benjamins

[/~ Supreme Cou, U7

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Mil H AE RODAK R., CLERK |

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Supreme Court of the United States

Octoner Texm, 1978

“@8-129

Barrisa Evrorrzan Amways,

Petitioner,

Avnanam Bensamins, as Personal Representative of the

Estate of Hilde Benjamins, deceased, Hawken Smpeney

Aviation, Lip., and Hawker Srwwpetezy Gaovr, Lrv.,

Rospondents,

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Gronoz N, Tompxrys, Ja.

Counsel for Petitioner

British European Airways

1251 Avenue of the Americas

New York, New York 10020

TABLE OF CONTENTS

PAOR

C0 (a

pO ESE SES EE ee 2

I EN A OE a 2

Statutory Provisions Involved 2o......0....cccccccccccesesnneen 3

ge I ES Se

acl eenieenesthepentnintaiettenniin .

B. Proceedings in the Courts Below .00.000.0.0.00.... 6

Ne EE ee 6

B.S CORES CE BORD onc cecccccccescscscscecsscccscssses 7

Reasons For GRantino THB WAIT ooo ccses 11

EE LES ee ee 19

Certificate of Service .............. Mahdiicsnsibiahahdincsteataatinviniinniiilin 20

Taste or AvTHORITIRG

Cases;

Block v. Compagnie Nationale Air France, 386 F.2d

323 (Sth Cir, 1967), cert. denied, 392 U.S, 905 (1968) 13

Choy v. Pan American Airways Co., 1941 Am. Maritime

ek 11 n.12

Compagnie Nationale Air France vy. Castano, 358 F.2d

a Be Re etiieccictiteterrtntnnstitiinanignpeninineneninnisi 7nd

li

PAGE

Dassigienis v. Cosmos Carriers &€ Trading Corp., 321

F.Supp. 1253 (S.D.N.Y. 1970), aff'd, 442 F.2d 1016

EERE Ae ES ces ie 7n.4

Evangelinos v. Trans World Airlines, Inc., 550 F.2d

I I SI i a 12 n.14

Ex parte Edelstein, 30 F.2d 636 (2d Cir.), cert: denied,

sub nom., Edelstein v. Goddart, 279 U.S. 851

pag: CS RID, RRR Se Eee a OUR oe 7,n.4

Executive Jet Aviation, Inc. v. Cleveland, 409 U.S. 249

Be NS idlaibicatasabhuahipaeniehontinete 16, 18

Fernandez v. Linea Aeropostal Venezolana, 156 F.

NN WO UN EI IIIT presiccciecnsdsnanstsssiongatibighentlatpeneeben 12 n.14

Hodgson and Thompson v. Bowerbank, 9 U.S. (5

SR I sas a siiad epeapasctehiinneninhnsacan 7n.4

Husserl v. Swiss Air Transport Co., 388 F.Supp. 1238

I ae dca ccs hanieaacligegcunifepitbeaiectcaiie’ 12 n.14

Husserl v. Swiss Air Transport Co., 485 F.2d 1240 (2d

Cir. 1973), aff’g, 351 F.Supp. 702 (S.D.N.Y. 1972) 11 n.11

Kavourgias v. Nicholaou Co., 148 F.2d 96 (9th Cir.

RARER th 0 Ay nee a oP 7n.4

Kolovrat v. Oregon, 366 U.S, 187 (1961) 0.022... 13

Komlos v. Compagnie Nationale Air France, 111 F.

Supp. 393 (S.D.N.Y. 1952), rev’d on other grounds,

209 F.2d 436 (2d Cir. 1953), cert. denied, 348 U.S.

RIVE RES WEEDS NEE ee eee 11 n.12

Martinez Hernandez v. Air France, 545 F.2d 279 (1st

Cir. 1976), cert. denied, 430 U.S. 950 (1977) ............ 12 n.14

Maugnie v. Compagnie Nationale Air France, 549 F.2d

1256 (9th Cir.), cert. denied, 431 U.S. 974 (1977) ...11 0.14

iii

PAGE

Mertens v. Flying Tiger Line, Inc., 341 F.2d 851 (2d

Cir.), cert. denied, 382 U.S. 816 (1965) .................... 15 n.15

Montalet v. Murray, 8 U.S. (4 Cranch) 46 (1807) ........ 7n.4

Noel v. Linea Aeropostal Venezolana, 247 F.2d 677

(2d Cir.), cert. denied, 355 U.S. 907 (1957) ........ passim

Notarian v. Trans World Airlines, Inc., 244 F.Supp.

ERI eS A ee 12 n.14

Reed v. Wiser, 555 F.2d 1079 (2d Cir.) cert. denied,

Gee are eee Nee ee es 15 n.15

Rosman vy. Trans World Airlines, Inc., 34 N.Y.2d 385

| gata CRIA LP ER TREC a a ne EC 12 n.14

Seth v. British Overseas Airways Corp., 329 F.2d 302

(1st Cir.), cert. denied, 379 U.S. 858 (1964) ................ 18

Sheris v. Sheris Co., 212 Va. 825, 188 8.B.2d 367 (Va.),

cert, denied, 409 U.S. 878 (1972) .u..............scccceceeseeee 12n.14

Smith v. Canadian Pacific Airways, Ltd., 452 F.2d 798

yl gn | SURE GS RE ROSE ea 11 n.11

Winsor v. United Air Lines, Inc., 159 F.Supp. 856

Cs, BI jase ea heeesiiettitee a iatiensentich Saindiaeiabeciiah 12 n.14

Wyman vy. Pan American Airways, Inc., 181 Misc. 963,

43 N.Y.S.2d 420 (Sup. Ct. 1943), aff'd, 267 App. Div.

947, 48 N.Y.S.2d 459 (1st Dept.), aff'd, 293 N.Y. 878

(1944), cert. denied, 324 U.S. 882 (1945) 2000... 11 n.12

Zousmer v. Canadian Pacific Air Lines, Ltd., 307 F.

RS pie) Ra 15 n.15

Statutes and Other Authorities:

Address of Chief Justice Vinson before the American

Bar Association (September 7, 1949), 69 S.Ct. (1949) 12

iv

PAGE

Calkins, The Cause of Action Under the Warsaw Con-

vention, 26 J. Air L. & Com. 217 (1959) 0... 9,15

Convention for the Unification of Certain Rules Relat-

ing to International Transportation by Air, 49 Stat.

ee ener ae a passim

H.R, 9622, 95th Cong., 2d Sess. (1978) ........0.......... 17,17 n.17

Hearings on Diversity of Citizenship Jurisdiction/

Magistrates Reform Before the Subcommittee on

Courts, Civil Liberties, and the Administration of

Justice of the House Committee on the Judiciary,

95th Cong., Ist Sess. 21 (1977) (testimonies of Lucas

A. Powe and Charles Alan Wright) ........000.000000202..... 18

Message from the President of the United States

Transmitting a Convention for the Unification of

Certain Rules, S. Exec. Doc. No. G, 73d Cong., 2d

Sess. (1934) reprinted in 1934 U.S. Av. R. (1934) ..8n.8

S. 2398 95th Cong., 2d Sess. (1978) .............ecceceseeeeeeeeee 17 n.17

Ue: 6 ee oo ee ee 2

EE ii. 0 EE 3 inlet nsednteserninetyinnainiccineeaenniial passim

SS VI 4 ia iii cide tnb talib 6,7, 7n.4

i RENE Reece aa ER a 7, 7 n.5, 18

Oe DAG TE vicki chic etal 7, 7 n.5, 8 n.7

ee ere © oe eee 6,9

Ea ene Ee ae ey ee ae 18

US. Sap. Ot. Bule 21, $B UBC AM. ccsccnccckceeceecice 1,6n3

— ——

IN THE

Supreme Court of the United States

Ocroser Term, 1978

en os

Barrise Evrortan Arrways,

Petitioner,

v.

ApranamM BensamMins, as Personal Representative of the

Estate of Hilde Benjamins, deceased, Hawxen Sropetry

Aviation, Lrp.,* and Hawker Swwve.tey Group, Lro.,*

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner prays that a writ of certiorari issue to re-

view the judgment of the United States Court of Appeals

for the Second Circuit entered in this case on March 6,

1978.

Opinions Below

The majority opinion of the Court of Appeals and the

dissenting opinion of Circuit Judge Van Graafeiland are

reported at 572 F.2d 913 (2d Cir. 1978) and are printed

in the Appendix to this Petition at pages 3a-24a,

The order of the District Court dismissing the Com-

plaint for lack of federal question jurisdiction under 28

U.S.C. §1331 is not reported either officially or unofficially ;

it is printed in the Appendix at page 25a,

* Joined as respondents pursuant to U.S. Sup. Ct. Rule 21, 28

U.S.C.A.

to

Jurisdiction

The judgment of the Court of Appeals was entered on

March 6, 1978. A timely Petition for Rehearing and Sug-

gestion for Rehearing En Bane was denied by Orders of

the Court of Appeals entered on April 27, 1978.’ The juris-

diction of the Court is invoked under 28 U.S.C, §1254(1).

Questions Presented

This case involves a wrongful death action brought by

a Dutch citizen against two British corporations arising

out of an aircrash which occurred in England. Overruling

its own twenty-one year precedent and thereby placing

itself in conflict with all other reported cases as well as

the long standing views of the Executive Branch of Gov-

ernment, the Court of Appeals has broadened the federal

question jurisdiction of the District Courts under 28 U.S.C,

§1331 to inelude all cases involving injury or death of

passengers arising out of international transportation by

air governed by the Warsaw Convention.’ Therefore, the

questions presented for review are:

1, Did the United States, in adhering to the Warsaw

Convention, intend that Article 17 thereof create a cause

of action for wrongful death?

2. Does Article 17 of the Warsaw Convention create a

cause of action for wrongful death?

*See the Appendix hereto at pages 1a-2a.

*A treaty of the United States, Official title: Convention for

the Unification of Certain Rules Relating to International Trans-

portation by Air, 49 Stat. 3000; T.S. 876 (1934). Herein referred

to as either the Warsaw Convention or simply the Convention,

3

8. Should the federal question jurisdiction of the Dis-

trict Courts be extended to include suits by aliens against

aliens arising out of an aviation accident oceurring in a

foreign country where “international transportatio:,” by

air, as defined in the Warsaw Convention, is involved?

4. Should the federal question jurisdiction of the Dis-

trict Courts be extended to include all claims arising from

“international transportation” by air where the Warsaw

Convention is applicable?

Statutory Provisions Involved

Convention For The Unification Of Certain

Rules Relating To International Transportation By Air

Chapter I

Scope—Definitions

Article I

(1) This convention shall apply to all international

transportation of persons, baggage, or goods performed

by aircraft for hire. It shall apply equally to gra-

tuitous transportation by aircraft performed by an

air transportation enterprise.

(2) For the purposes of this convention the expres-

sion “international transportation” shall mean any

transportation in which, according to the contract

made by the parties, the place of departure and the

place of destination, whether or not there be a break

in the transportation or a transshipment are situated

either within the territories of two High Contracting

Parties, or within the territory of a single High Con-

tracting Party, if there is an agreed stopping place

within a territory subject to the sovereignty, suzer-

4

ainty, mandate or authority of another power, even

thongh that power is not a party to this convention.

Transportation without such an agreed stopping place

between territories subject to the sovereignty, suzer-

ainty, mandate, or authority of the same High Con-

tracting Party shall not be deemed to be internationa!

for the purposes of this convention.

49 Stat. 3014.

Chapter III

Liability of the Ca>rier

Article 17

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. 3019.

Article 24

(1) In the cases covered by articles 18 and 19 any

action for damages, however founded, can only be

brought subject to the conditions and limits set out in

this Convention.

(2) In the cases covered by article 17 the provisions

of the preceding paragraph shall also apply, without

prejudice to the questions as to who are the persons

who have the right to bring suit and what are their

respective rights.

49 Stat. 3020.

H)

Federal Question Jurisdiction

28 U.S.C, §1331. Federal question; amount in contro-

versy; costs.

(a) The district courts shall have orginal jurisdic- .

tion of all civil actions wherein the matter in contro-

versy exceeds the sum or value of $10,000, exclusive

of interest and custs, and arises under the Constitu-

tion, laws, or treaties of the United States except that

no such sum or value shall be required in any such

action brought against the United States, any agency

thereof, or any officer or employee thereof in his official

capacity.

(b) Except when express provision therefor is other-

wise made in a statute of the United States, where the

plaintiff is finally adjudged to be entitled to recover

less than the sum or value of $10,000, computed without

regard to any setoff or counterclaim to which the de-

fendant may be adjudged to be entitled, and exclusive

of interests and costs, the district court may deny costs

to the plaintiff and, in addition, may impose costs on

the plaintiff.

As amended July 25, 1958, Pub.L. 85-554, $1, 72 Stat.

415; Oct. 21, 1976, Pub. L. 94-574, §2, 90 Stat. 2721.

28 U.S.C. $1331.

Statemert of the Case

A. The Facts.

This is a wrongful death action brought by respondent

Abraham Benjamins (hereinafter Benjamins) to recover

damages for the death of his wife as a result of an acci-

dent involving an aircraft of petitioner British Furopean

Airways (hereinafter BEA) which occurred shortly after

take-off from Heathrow Airport, London, England, on

6

June 18, 1972. Both BEA and the manufacturer® of the

aircraft involved were joined as defendants in the action

below.

Benjamins, although a resident of California, is not a

citizen of the United States but is a citizen of the Nether-

lands and was so when the action was commenced. Simi-

larly, his deceased wife was a citizen of the Netherlands at

the time of her death. Petitioner BEA and-HSA both are

corporations organized and existing under the laws of the

United Kingdom and have their principal places of business

there.

The passenger ticket pursuant to which Benjamins’

deceased wife was travelling at the time of her death was

purchased in Los Angeles and provided for international

transportation within the meaning of Article 1 of the War-

saw Convention. It is undisputed that the provisions of the

Warsaw Convention apply to the righis of Benjamins as

against petitioner in this case.

B. Proceedings in the Couris Below.

1. The District Court.

This action was one of several cases filed in various Unit-

ed States District Courts arising out of the same accident,

all of which were consolidated in the Eastern District of

New York for consolidated and coordinated pretrial and

discovery proceedings pursuant to 28 U.S.C. $1407. During

discovery regarding Benjamins’ alleged damages, it was

learned that both Benjamins and his deceased wife were

Dutch citizens and not citizens of the United States.

As the only jurisdictional basis alleged in the original

complaint was diversity of citizenship under 28 U.S.C.

* Hawker Siddeley Aviation, Ltd. and Hawker Siddeley Group,

Ltd., herein collectively referred to as HSA. They are joined as

respondents herein pursuant to U.S. Sup. Ct. Rule 21, 28 U.S.C.A.

7

§1332, BEA and HSA moved to dismiss the complaint for

lack of subject matter jurisdiction. The motion was granted‘

and Benjamins was given leave to file an amended Com-

plaint asserting federal question jurisdiction. An amended

Complaint was then filed alleging as the bases for jurisdic-

tion 28 U.S.C. §§1331, 1337 and 1350.

BEA and HSA moved to dismiss the amended complaint

upon the wround that there was no basis for federal ques-

tion jurisdiction in that the Warsaw Convention did not

create a cause of action for wrongful death and the other

provisions’ relied upon by Benjamins as the bases for fed-

eral question jurisdiction were not applicable.

Considering itself bound by prior decisions of the Court

of Appeals for the Second Circuit, to the effect that the

Warsaw Convention does not create a cause of action for

wrongful death so as to confer federal question jurisdiction

under 28 U.S.C. §1331, the District Court dismissed the

amended complaint.for lack of jurisdiction in a bench deci-

sion, which is printed in the Appendix at pages 26a-29a.

2. The Court of Appeals.

On appeal, Benjamins argued that jurisdiction over the

amended complaint properly vested in the District Court

under both 28 U.S.C. §§1331 and 1350. By a vote of 2 to 1,

with a strong dissenting opinion by Cireuit Judge Van

‘ Diversity jurisdiction under 28 U.S.C. §1332 does not exist

where both plaintiffs and defendants are aliens. See, Hodgson and

Thompson v. Bowerbank, 9 U.S. (5 Cranch) 303 (1809) ; Montalet

v. Murray, 8 U.S. (4 Cranch) 46 (1807); Compagnie Nationale

Air France v. Castano, 358 F.2d 203, 206 (1st Cir. 1966) ; Kavour-

gias v. Nicholaow Co., 148 F.2d 96 (9th Cir. 1945); Ex parte

Edelstein, 30 F.2d 636 (2d Cir.), cert. denied, sub nom., Edelstein

v. Goddard, 279 U.S. 851 (1929); Dassigienis v. Cosmos Carriers

& Trading Corp., 321 F.Supp. 1253 (S.D.N.Y. 1970), aff'd, 442

F.2d 1016 (2d Cir. 1971).

528 U.S.C. §1337: Commerce and anti-trust regulation. 28

U.S.C. §1350: Alien’s action for tort.

8

Graafeiland, the Court of Appeals,’ overruling its own 21

year precedent, held that Article 17 of the Warsaw Con-

vention does create a cause of action for wrongful death

and concluded, therefore, that the District Court did have

federal question jurisdiction over the amended complaint

pursuant to 28 U.S.C. §1331." In discarding its own uni-

versally accepted precedent, Noel v. Linea Aeropostal Ven-

ezolana, 247 F.2d 677 (2d Cir.), cert. denied, 355 U.S. 907

(1957), and thereby placing itself in conflict with all exist-

ing precedent, the majority of the Court below stated:

The vact that a proposition of law has been accepted

for some twenty years is evidently a sign that cireum-

spection is needed in seeking to overturn that proposi-

tion. We recognize that our holdings in Komlos and

Noel have become the rule not of this circuit alone,

but of others as well. See, e.g., Maugnie v. Compagnie

Nationale Air France, 549 F.2d 1256, 1258 (9th Cir.)

cert, denied, 431 U.S. 974, 97 S.Ct. 2239, 53 L.Ed.2d

1072 (1977). Nonetheless, we are convinced that—in

light of both the paucity of analysis that accompanied

the creation of the rule and the strong arguments in

favor of the opposite rule—the Komlos/Noel rule

ought no longer to be followed.

572 F.2d at 919; Appendix 15a.

The majority of the Court below rejected the clearly

expressed view of the Executive Branch of Government

that Article 17 merely creates a presumption of liability.*

® Per Circuit Judges Lumbard and Feinberg.

7 The majority of the Court below agreed with the District Court

that jurisdiction could not properly be based upon the Alien Tort

Claims Act, 28 U.S.C. §1350. 572 F.2d at 916; Appendix 8a.

* Secretary of State Cordell Hull wrote:

The effect of article 17 (ch. TIT) of the Convention is to cre-

ate a presumption of liability against the aerial carrier on

9

The majority characterized this view as a “passing re-

mark of Secretary [of State Cordell] Hull in a lengthy

letter .. .” 572 F.2d at 919; Appendix 15a.

The only “new authority” relied upon by the majority

of the Court below, which was not before the Court of

Appeals for the Second Circuit when Neel was decided,

was (1) an article by G. Nathan Calkins entitled The

Cause of Action Under the Warsaw Convention, 26 J. Air

L. & Com, 217, 319 (1959) and (2) the Multidistrict Litiga-

tion Act, 28 U.S.C. §1407. Otherwise, the majority decision

rested upon a reexamination of the same treaty provisions

that were before the court in Noe/, and, indeed, the Senate

in 1934 when it gave its advice and consent to ratification

of the Convention.

In a strong dissenting opinion, Cireuit Judge Van

Graafeiland stated as to this reappraisal and disearding

of the Noel rule:

Completely reversing our field, we now hold that

Article 17 creates a cause of action for wrongful death.

As justification for this turnabout, the majority relies

in part upon the “paucity of analysis that accompanied

the creation of the rule.” I am at a disadvantage in

challenging this statement, because Judge Lumbard,

the writer of the majority opinion, also wrote Noel.

However, I am satisfied that Judge Lumbard gave

Noel the same careful and thoughtful consideration he

gives to every case, and which he has given to this

the mere happening of an accident occasioning injury or

death of a passenger subject to certain defenses allowed under

the Convention to the aerial carrier.

1934 U.S. Av. R. 239, 243. See, Message from the President of

the United States Transmitting a Convention for the Unification

of Certain Rules, 8S. Exec. Doc. No. G, 73d Cong., 2d Sess. (1934).

10

one. Moreover, I am convinced that the numerous

courts who have adopted the reasoning of Noel, see,

e.g., Maugnie v. Compagnie Nationale Atr France,

549 F.2a 1256, 1258 (9th Cir.), cert. denied, 431 US.

974, 97 S.Ct. 2939, 53 L.Ed.2d 1072 (1977), did not do

so without their own thoughtful analysis of its merit.

In short, I am constrained to conclude, as Judge Moore

did when dissenting in Lisi v. Alitalia—Linee Aeree

Italiane, S.p.A., 370 F.2d 508, 515 (2d Cir. 1966), aff'd

by an equally divided court, 390 U.S. 455, 88 S.Ct. 281,

19 L.Ed.2d 276 (1968), that the majority no longer ap-

proves of the terms of the Convention and therefore

by judicial fiat has decided to rewrite it. In the pro-

cess, the majority draws within the ever-widening am-

bit of federal jurisdiction an entirely new class of

eases which Congress probably never intended should

be there.

A court should proceed cautiously when asked to

overturn a well-settled doctrine of law. This is es-

pecially true in this case because a sensitive question

concerning the scope of federal jurisdiction is involved.

572 F.2d at 920; Appendix 18a.

A Petition for Rehearing and Suggestion for Rehearing

En Banc were denied by Orders dated April 27, 1978.°

* Appendix la-2a.

11

REASONS FOR GRANTING THE WRIT

1. The majority decision of the court below overrules

the Second Circuit’s own 21 year precedent” as well as two

of its subsequent decisions.'' While the Second Circuit’s

decision in Noel v. Linea Aeropostal Venezolana, 247 F.2d

677 (2d Cir.), cert. denied, 355 U.S. 907 (1957) was not the

first case to hold that the Warsaw Convention does not

create a cause of action,” it is clear that the decision in

Noel was extremely influential in a large number of sub-

sequent cases."* In fact, since the decision in Noel, the

courts uniformly have held, in reliance upon Noel, that

Article 17 of the Warsaw Convention does not create a

cause of action, but rather, only a presumption of liability

on the part of the air carrier."

1° Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir.),

cert. denied, 355 U.S. 907 (1957).

1! Smith v. Canadian Pacific Airways, Ltd., 452 F.2d 798, 801-2

(2d Cir. 1971) and Husserl v. Swiss Air Transport Co., 485 F.2d

1240 (2d Cir. 1973), aff’g, 351 F.Supp. 702, 706 (S.D.N.Y. 1972).

The following courts (in chronological order) came to the

same conclusion prior to Noel: Choy v. Pan American Airways

Co., 1941 Am. Maritime Cas. 483 (S.D.N.Y. 1941); Wyman v.

Pan American Airways, Inc., 181 Mise. 963, 43 N.Y.S.2d 420

(Sup.Ct. 1943), af?d, 267 App. Div. 947, 48 N.Y.S.2d 459 (ist

Dept.), aff'd, 2938 N.Y. 878 (1944), cert. denied, 324 U.S. 882

(1945); and Komlos v. Compagnie Nationale Air France, 111

F.Supp. 393 (S.D.N.Y. 1952), rev’d on other grounds, 209 F.2d

436 (2d Cir. 1953), cert. denied, 348 U.S. 819 (1954).

8 Ordinarily, conflict of a single decision of a Court of Appeals

with all other reported authority might not render the invoking

of certiorari jurisdiction compelling, but the considerable influ-

ence and general acceptance of the Second Circuit’s earlier deci-

sion in Noel make it likely that its new decision will have a sub-

stantial destabilizing effect on the law in this area.

See, Maugnie v. Compagnie Nationale Air France, 549 F.2d

1256, 1258 n.2 (9th Cir.), cert. denied, 431 U.S. 974 (1977);

12

Thus, the majority decision of the court below is bound

to have a dramatic impact on what has heretofore been a

well settled area of the law. In a stroke, this decision cre-

ates conflicts among the Circuits which previously did not

exist as to the meaning and effect to be given to an impor-

tant substantive provision of a treaty of the United States.

In discussing the certiorari jurisdiction of the Court, Chief

Justice Vinson has stated:

The function of the Supreme Court is, therefore, to

resolve conflicts of opinion on federal questions that

have arisen among lower courts, to pass upon ques-

tions of wide import under the Constitution, laws and

treaties of the United States...

Address of Chief Justice Vinson before the American Bar

Association (September 7, 1949), 69 S.Ct. v-vi (1949). By

their decision, the majority of the court below has triggered

each of these concerns.

First, the decision of the court below now has created a

conflict among the Circuits where none existed before. Sec-

ond, the decision now has thrown into substantial uncer-

tainty the uniform interpretation of an important substan-

tive provision a treaty of the United States which had

prevailed for some 45 years. As the Court of Appeals for

the Fifth Circuit has stated with regard to the Warsaw

Convention:

Evangelinos v. Trans World Airlines, Inc., 550 F.2d 152 (3d Cir.

1977) ; Martinez Hernandez v. Air France, 545 F.2d 279, 281 n.1

(Ist Cir. 1976), cert. denied 430 U.S. 950 (1977); Husserl v. Swiss

Air Transport Co., 388 F.Supp. 1238, 1243 (S.D.N.Y. 1975):

Rosman v. Trans World Airlines, Inc., 34 N.Y.2d 385 (1974);

Sheris v. Sheris Co., 212 Va. 825, 188 S.E.2d 367 (Va.), cert.

denied, 409 U.S. 878 (1972); Notarian v. Trans World Airlines.

Inc., 244 F.Supp. 874, 877 (W.D. Pa. 1965); Winsor v. United

Air Lines, Inc., 159 F.Supp. 856 (D.Del. 1958); Fernandez v.

Linea Aeropostal Venezolana, 156 F.Supp. 94 (S.D.N.Y. 1957).

13

A multilateral treaty is rather like a “uniform law”

within the United States. The Court has an obligation

to keep interpretation as uniform as possible.

Block v. Compagnie National Air France, 386 F.2d 323 at

337-38 (5th Cir. 1967), cert. denied, 392 U.S. 905 (1968).

The majority decision of the Court below presents an

important matter which calls for the exercise of certiorari

jurisdiction.

We granted certiorari because the cases involve im-

portant rights asserted in reliance upon federal treaty

obligations.

Kolovrat v. Oregon, 366 U.S. 187 at 191 (1961).

2. The majority of the Court below appears to disregard

or reject the interpretation placed upon Article 17 of the

Warsaw Convention by the Executive Branch of the Gov-

ernment, expressed at the time when the United States

adhered to the treaty in 1934. Such a course seems not

only suspect, but perhaps even beyond the court’s power.

Judge Van Graafeiland, in his dissenting opinion below,

stated this point well:

The United States Senate is presently debating the

wisdom of a proposed Panama Canal treaty, by which

Panama will be given control of the Canal but certain

rights will be reserved to the United States. One of

the main concerns of those opposing ratification of

the treaty is whether they can rely upon the inter-

pretation of its provisions given them by the execu-

tive branch of our government. Opinions such as the

one this Court now hands down demonstrate that

their concern may not be ill-founded.

In 1934, when Secretary of State Cordell Hull sent

the Warsaw Convention to President Roosevelt for

14

transmission to the Senate, he wrote that the effect

of Article 17 was to “create a presumption of liabil-

ity.’ We may assume, I believe, that the Senate relied

upon the Secretary of State’s assurances. Without

question, the courts have done so. See Noel v. Linea

Aeropostal Venezolana, 247 F.2d 677 (2d Cir.), cert.

denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262

(1957); Komlos v. Compagnie Nationale Air France,

111 F.Supp. 393 (S.D.N.Y. 1952), rev’d on other

grounds, 209 F.2d 436 (2d Cir. 1953), cert. denied, 348

U.S. 820, 75 S.Ct. 31, 99 L.Ed. 646 (1954); Ross v.

Pan American Airways, Inc., 299 N.Y. 88, 97-98 (1949).

In Noel we said:

Secretary of State Hull’s letter to President Roose-

velt, dated March 51, 1934, indicated that the effect

of Article 17 on which plaintiffs rely for their argu-

ment was only to create a presumption of liability,

leaving it for local law to grant the right of action.

As one authority has stated, the purpose of the

Convention was only “to effect a uniformity of

procedure and remedies.” Orr, The Warsaw Con-

vention, 31 Va. L. Rev. 423 (1945); see also Com-

ment, Air Passenger Deaths, 41 Corn. L.Q. 243, 255-

60 (1956); Fixel, The Law of Aviation, §23 (1948).

247 F.2d at 679 (footnote omitted).

572 F.2d at 919-20; Appendix 17a-18a.

The Court should review the judgment of the court

below because it does ignore or eschew the expressed view

of the Executive Branch as to the interpretation of a

treaty to which the Senate, accepting that view, gave its

advice and consent to ratification of adherence.

3. Thousands of cases are filed each year in the United

States based on claims arising out of international trans-

15

portation by air governed by the Warsaw Convention.

The court below now has provided a federal forum for

such cases by including these claims within the federal

question jurisdiction of the District Courts of the United

States. 28 U.S.C. §1331." In an effort to justify this vast

expansion of federal question jurisdiction, the majority

decision of the Court below gave as one” of its principal

reasons for overruling Noel:

One factor which makes federal jurisdiction peculiarly

appropriate in large air crash cases was not present

at the time Komlos and Noel were decided. Section

1407 of 28 U.S.C., enacted by Pub.L. No. 90-296, 90th

Cong., 2d Sess., 82 Stat. 109 (April 29, 1968), created

the Judicial Panel on Multidistrict Litigation, and

authorized the creation of the procedures found in

the Manual for Complex Litigation. These procedures,

1°Tn this regard it is important to note that this newly created

eause of action for wrongful death has none of the attributes

usually accompanying such a cause of action. For example, the

Convention does not prescribe the persons entitled to bring suit.

49 Stat. 3020. Reed v. Wiser, 555 F.2d 1079 (2d Cir.), cert. denied,

434 U.S. 922 (1977); Zousmer v. Canadian Pacific Air Lines,

Ltd., 307 F.Supp. 892 (S.D.N.Y. 1969). Nor does it define the

items of damage which are recoverable. See, Mertens v. Flying

Tiger Line, Inc., 341 F.2d 851, 858 (2d Cir.), cert. denied, 382

“US. 816 (1965). All of these matters would require a district

court not only to apply foreign law with which it is not familiar,

but also to resolve numerous choice of law problems in determin-

ing what, if any, foreign law should apply.

16 The other primary basis was the majority’s reliance on an

article by G. Nathan Calkins, The Cause of Action Under the

Warsaw Convention, 26 J. Air L. & Com. 217, 323 (1959).

Frankly, it is difficult to understand this relianee since the

Calkins’ article: (1) preseuted no new evidence not before the

court in Noel and, indeed, the Senate of 1934; and (2) is out-

dated as to the most convincing argument contained therein for

the creation of a cause of action—that otherwise United States

courts would strictly apply a lex loci delictus rule in foreign

accidents preventing American recoveries. See footnote 7 of the

dissenting opinion below, 572 F.2d at 923; Appendix 7a.

16

such as consolidation and assignment to one expert

judge, can—by reducing expenses and expediting dis-

positions—benefit all parties to air disaster actions,

in which the plaintiff/victims may come from many

different parts of the country. Obviously, these pro-

cedures are unavailable among the courts of the

several states.

572 F.2d at 919; Appendix 16a. While there can be little

doubt that multidistrict litigation handling is most effi-

cient in dealing with large air crash disasters, this argu-

ment is more correctly addressed to the Congress than it

is to the reinterpretation of a treaty adhered to by the

United States for some 35 years prior to the enactment

of the Multidistrict Litigation Act.

In any case, such an argument of expediency must be

rejected as it was in Executive Jet Aviation, Inc. v. Cleve-

land, 409 U.S. 249 (1972) where the Court stated:

It may be... that aviation tort cases should be gov-

erned by uniform substantive and procedural laws,

and that such actions should be heard in the federal

courts so as to avoid divergent results and duplicitous

litigation in multi-party cases ... If federal uniformity

is the desired goal with respect to claims arising from

aviation accidents, Congress is free under the Com-

merce Clause to enact legislation applicable to all such

accidents, whether occurring on land or water, and

adapted to the specific characteristics of air commerce.

409 U.S. at 273-74,

The majority below disclaimed any serious consequences

from its decision with regard to increasing the number of

cases which may be brought in federal courts:

17

Finally, we do not anticipate any large increase in

the volume of federal litigation as a result of our

holding. Most cases will fall under 28 U.S.C. §1332,

as they do today; only when plaintiffs and defendants

are all aliens, but the United States is a nation with

treaty jurisdiction, will it be necessary to invoke 28

U.S.C. §1331.

572 F.2d at 919; Appendix 16a.

Approximately 12 days before the decision below, the

House of Representatives passed H.R. 9622, 95th Cong.

2d Sess. This bill would abolish diversity jurisdiction be-

tween citizens, limit diversity jurisdiction to actions be-

tween citizens and aliens only, and abolish the jurisdictional

amount in federal question cases."” It is difficult to imagine

a decision having greater impact on the jurisdiction of the

federal courts than that of the majority below if the House

bill becomes law. First, the immediate result of this deci-

sion is to provide federal question jurisdiction to contro-

versies between aliens arising out of international aviation

accidents at the same time that Congress is proposing to

limit access of United States citizens to the f,..cral courts

in eases involving domestic aviation acci > «

Second, with the abolition of the juri mount

in federal question cases (a provision .« pending

bills share), the majority decision of t} + court below will

provide federal forums (whether by orig_ual filing or re-

moval) for thousands of new cases each year. Many of

these cases involve treaty limited recoveries (e.g. baggage

and cargo loss or damage claims limited to $20 per kilo-

gram) that would, in effect, make the federal courts “small

17 H.R. 9622 is one of three bills being considered by the Sen-

ate. One of the other two bills (S. 2398) is identical to H.R. 9622.

The remaining bill abolishes the jurisdictional amount in federal

question cases, but limits diversity jurisdiction by preventing a

plaintiff from bringing suit in the federal court in his home state.

18

claims courts”. See, e.g. Seth v. British Overseas Atr-

ways Corp., 329 F.2d 302 (ist Cir.), cert. denied, 379 U.S.

858 (1964).

It is significant that in the hearings before both the

House of Representatives and the Senate on the proposed

bills, the abolition of the jurisdictional amount in federal

question cases was uncontroversial because the evidence

indicated that few, if any, federal question cases were not

already specifically exempted from the jurisdictional

amount by specific legislation. See, e.g., 28 U.S.C. §$1337,

1983 et alia. In fact, no one mentioned the possibility of

eases arising directly from a treaty, let alone the pos-

sibility of thousands of such cases, most of which would

involve very small claims. See, Testimony of Lucas A.

Powe in Hearincs Berore THE SuscoMMITTEE ON CovRTS,

Civ. Lipertigs, AND THE ADMINISTRATION OF JUSTICE OF

THE COMMITTEE ON THE JupDicarny, House or RepresENTA-

tives, 95th Cong., 1st Sess., Serial No. 21, pp. 261-63. See

also, Testimony of Charles Alan Wright, id. at 228-29.

Thus, by its decision, the majority of the court below

has undermined an important aspect or reason underlying

the passage of a bill by the House of Representatives which

would substantially limit the jurisdiction of the District

Courts. The irony, of course, is that it is the Congress

which is entrusted with the duty to define federal question

jurisdiction. Executive Jet Aviation, Inc. v. Cleveland,

409 U.S. 249 (1972). Not only has the majority decision

of the court below substantially increased the scope of

federal question jurisdiction, but it did so at the very time

when Congress is considering enacting legislation funda-

mentally altering such jurisdiction on the basis that the

effect of the alteration would not significantly affect the

workload of the federal courts, In his dissenting opinion

below, Circuit Judge Van Graafeiland stated:

19

(T]he majority draws within the ever-widening ambit

of federal jurisdiction an entirely new class of cases

which Congress probably never intended should be

there.

572 F.2d at 920; Appendix 18a.

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that a writ of certiorari issue to review the judgment of

the United States Court of Appeals for the Second Cir-

cuit in this case, as prayed herein.

Georce N. Tompkins, Jr.

Counsel for Petitioner

British European Airways

1251 Avenue of ithe Americas

New York, New York 10020

Of Counsel:

Connon & ForsytH

Ronaup E. Pace

NaTHanret F. Kwappen

New York, New York

July 24, 1978

20

Certificate oi Service

I hereby certify that I have, this 24th day of July, 1978,

served the foregoing Petition for a Writ of Certiorari to

the United States Court of Appeals for the Second Circuit

upon respondents by depositing same in a United States

mailbox at 1251 Avenue of the Americas, New York, New

York 10020, with first class postage’ prepaid to:

Menves & Mount

3 Park Avenue

40th Floor

New York, New York 10016

Ronatp L. M. GotpmMan & Associates

13737 Fiji Way

Marina del Rey, California 90291

KREtNDLER & KREINDLER

99 Park Ave.

New York, New York 10016

Juiy 24, 1978

Tee eee rr rrr rrr errr tt ee

Grorce N. Tompxrins, Jr.

Counsel for Petitioner

Order of the Second Circuit Panel Denying the

Petition for Rehearing

UNITED STATES COURT OF APPEALS

Seconp Crrcurr

Docket No. 77-7201

At a Stated Term of the United States Court of

Appeals, in and for the Second Circuit, held

at the United States Court House, in the

City of New York, on the 27th day of April,

one thousand nine hundred and seventy-

eight.

Present:

Hon. Witrrep FErnsere,

Hon. J. Epwarp Lumsarp,

Hon. Exvtsworte Van (tRAAFEILAND,

Circuit Judges.

ABRAHAM BeEnJAMINs, as Personal Representative of the

Estate of Hilde Benjamins, deceased,

Plaintiff-Appellant,

v.

British Evropean Arrways, Hawker Smpe.ey

Aviation, Lrp., and Hawker Smpe.tey Grovp, Ltp.,

Defendant-A ppellees.

A petition for a rehearing having been filed herein by

counsel for the defendant-appellees,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is Denied.

Date:

la

2a

Order of the Second Circuit Denying

Rehearing in Banc

UNITED STATES COURT OF APPEALS

Seconp Crecurr

Docket No. 77-7201

At a stated term of the United States Court of

Appeals, in and for the Secorid Circuit, held

at the United States Court House, in the

City of New York, on the twenty-seventh

day of April, one thousand nine hundred

and seventy-eight.

AsraHAM Bengamins, as Personal Representative of the

Kstate of Hilde Benjamins, deceased, _

Plaintiff-Appellant,

v.

British EvropeaN Arrways, Hawker SIDDELEY

Aviation, Lrp., and HawKer Smpexey Grovp, Lr.,

Defendants-A ppellees.

A petition for rehearing containing a suggestion that

the action be reheard in bane having been filed herein by

counsel for the defendants-appellees, and no active judge

or judge who was a member of the panel having requested

that a vote be taken on said suggestion,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is DENIED.

/s/ Irvine R. Kaurman

Chief Judge

Irving R. Kaufman

Date:

3a

Opinion of Court of Appeals

Reported at 572 F.2d 913 (1978)

UNITED STATES COURT OF APPEALS

For tHe Seconp Cracurr

el

No. 111

(Argued October 21, 1977 Decided March 6, 1978.)

Docket No. 77-7201

= =

ae

AspraHaM Bengamins, as Personal Representative of the

Estate of Hilde Benjamins, Deceased,

Plaintiff-Appellant,

v.

British Evropean Arrways, Hawker Smpeiey

Aviation, Lrp., and Hawker Smpetey Group, Lrp.,

Defendants-A ppellees.

4

o

vy

Before:

Lumsarp, Fernserc and Van GraaFEILAND,

Circuit Judges.

=

eae

Ronatp L, M. Gotpmay, Marina del Rey, Cal.

(Ronald L. M. Goldman & Associates, Ma-

rina del Rey, Cal., on brief), for plaintiff-

appellant.

4a

Opinion of Court of Appeals

Grorce N. Tompxtns, Jr., New York City (Con-

don & Forsyth, Ronald E. Pace and Michael

J. Holland, New York City, on brief), for

Defendant-appellee British European Air-

ways.

James J. Frxnerty, Jr., New York City (Men-

des & Mount, New York City, on brief), for

Defendant-eppellee Hawker Siddeley Avia-

tion, Ltd.

4

@

vy

Lumparp, Circuit Judge:

This appeal, arising out of the death of Hilde Benjamins

in the air crash disaster at Staines, England, on June 18,

1972, once again presents us with the much-discussed ques-

tion whether the Warsaw Convention’ creates a cause of

action. The District Court for the Eastern District dis-

missed the complaint herein, believing itself bound by our

prior decisions? to answer that question in the negative.

We reverse.

I

On June 18, 1972, a Trident 1 Jet Aircraft—designed

and manufactured by Hawker Siddeley Aviation, Ltd.

1 Convention for the Unification of Certain Rules Relating to Interna-

tional Transportation by Air, 49 Stat. 3000, T.S. No. 876 (concluded

Oct. 12, 1929; adhered to by United States June 27, 1934) [hereinafter

referred to as “Convention”; “Article(s) _...” means Article(s) _... of

the Convention]. @

2 #$$Judge Weinstein cited Husseri v. Swiss Air Transport Co., 485 F.2d

1240 (2d Cir. 1973), aff’g 351 F. Supp. 702 (S.D.N.Y. 1972); Noel v.

Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir.), cert. denied, 355

U.S. 907, 78 8.Ct. 334, 2 L.Ed.2d 262 (1957); and Komlos v. Compagnie

Nationale Air France, 111 F.Supp. 393 (S.D.N.Y. 1952), rev’d on other

grounds, 209 F.2d 436 (2d Cir. 1953), cert. denied, 348 U.S. 820, 75

S.Ct. 31, 99 L.Ed. 646 (1954). He indicated, however, that he thought

the matter not free from doubt, and commended the question to our

eareful attention.

5a

Opinion of Court of Appeals

(“HSA”], and owned and operated by British European

Airways [“BEA”]—took off for Brussels from London’s

Heathrow Airport. Soon thereafter, the plane stalled and

crashed into a field, killing all 112 passengers, including

Hilde Benjamins. Hilde Benjamins was survived by her

husband Abraham; both were Dutch citizens permanently

residing in California. BEA and HSA are British cor-

porations with their principal’ places of business in the

United Kingdom. The ticket on which Hilde Benjamins

was travelling had been purchased in Los Angeles, and

clearly provided “international transportation” within the

meaning of Article 1 of the Convention. Therefore, since

the United States and the United Kingdom are both High

Contracting Parties, the Convention is applicable to this

proceeding.

This suit for wrongful death and baggage loss was

brought in April of 1974 in the Eastern District of New

York by Abraham Benjamins, as representative of his

widow’s estate, on behalf of himself and the children of -

the marriage. Benjamins’ action was consolidated with a

number of others arising out of the same incident, and

assigned to Judge Weinstein. in re Air Crash Disaster at

Staines, England, MDL No. 147 (J.P.M.D.L.). The major

allegations in the complaint invoked Articles 17 and 18

of the Convention. These read, in relevant part, as follows:

Article 17. The carrier shall be liable for damage sus-

tained 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 dis-

embarking.

6a

Opinion of Court of Appeals

Article 18(1). The carrier shall be liable for damage

sustained in the event of the destruction or loss of,

or of damage to, any checked baggage or any goods,

if the occurrence which caused the damage so sus-

_ tained took place during the transportation by air.

Dismissed once for lack of subject matter jurisdiction—

only diversity was originally alleged—the complaint was

amended to invoke 28 U.S.C. §§ 1331 and 1350 as well.’

After both sides had submitted briefs, Judge Weinstein

ruled that this suit did not “arise” under a treaty of the

United States, as § 1331 requires; he relied on Second Cir-

cuit precedent indicating that the Convention does not

create a cause of action, but only establishes conditions for

a cause of action created by domestic law. This appeal

followed.

II

The first question we address‘ is whether any court in

this country has jurisdiction in the “international! or treaty

sense.” Smith v. Canadian Pacific Airways, Ltd., 452 F.2d

798, 800 (2d Cir. 1971). Only then may we consider “the

power of a particular United States court, under federal

statutes and practice, to hear a Warsaw Convention case—

jurisdiction in the domestic law sense.” Id.

Jurisdiction in the treaty sense is determined by Article

28(1) of the Convention, which provides that

[a]n action for damages must be brought, at the op-

tion of the plaintiff, in the territory of one of the High

3 Jurisdiction over HSA is alleged under principles of pendent juris-

diction.

4 Personal jurisdiction is not an issue in this case, as each defendant

has submitted to the in personam jurisdiction of the court.

Ta

Opinion of Court of Appeals

Contracting Parties, either before the court of the

domicile of the carrier or of his principal place of busi-

ness, or where he has a place of business through

which the contract has been made, or before the court

at the place of destination.

The third alternative of Article 28(1) is satisfied in this

ease: the ticket which constituted the contract of carriage

was purchased in Los Angeles, through BEA. The fourth

alternative appears also to fit, as decedent’s round-trip

ticket provided for an ultimate destination in the United

States.

Nonetheless, courts in the United States, and particu-

larly the federal courts, are not the only possible forum

for Abraham Benjamins. The courts of England are open

to his suit—permitted by the first and second alternatives

of Article 28(1)—as are the state courts of California.®

Plaintiffs burden is not met by a showing that Article

28(1) permits some court of this country to hear his com-

plaint; he must further show that some jurisdictional

statute permits a federal court to do so. .

Il

The two bases for federal jurisdiction pleaded in Ben-

jamins’ amended complaint are the Alien Tort Claims Act,

28 U.S.C. § 1350,° and a general federal question “arising

under” a treaty.

5 Smith v. Canadian Pacific Airways, Ltd., supra, indicates that venue

is no concern of Article 28(1), 462 F.2d at 800-01. It answers only the

question “whether suit may be brought at all in the courts of the United

States,” whether state or federal and regardless of location. Id. at

800 n. 3.

6 The District Courts shall have original jurisdiction of any civil action

by an alien for a tort only, committed in violation of the law of nations

or a treaty of the United States.

8a

Opinion of Court of Appeals

The Alien Tort Claims Act does not provide a basis for

jurisdiction over this action. Without having to discuss

the question of whether the wrongful death action against

a carrier is essentially one in tort or in contract, we are

satisfied that Benjamins’ complaint alleges a violation of

neither the law of nations nor any treaty of the United

States. :

The Convention itself does not seek to outlaw accidents,

crashes and other events causing death, injury or property

loss Rather, it sets forth the terms under which victims

of such events may recover their damages. Airlines do

not “violate” the Convention when they crash—even if

their negligence was ‘wilful’—but only when they fail to

compensate victims who are adjudged to be appropriate

recipients of damages. The fact that a claimant must bring

an action to recover does not constitute a violation by the

carrier of its obligations.

Nor do the acts alleged violate the law of nations under

the standards we set in JJT v. Vencap, Ltd., 519 F.2d 1001,

1015 (2d Cir. 1975): “a violation ... of those standards,

rules or customs (a) affecting the relationship between

states or between an individual and a foreign state, and

(b) used by those states for their common good and/or in

dealings inter se.” See Dreyfus v. Von Finck, 534 F.2d 24,

30-31 (2d Cir. 1976). This law does not include a prohibi-

tion of air crashes,

IV

Accordingly, we must determine whether any of the

causes of action pleaded by Benjamins “arise under” the

Warsaw Convention. It is true that in the past we have

said that the Warsaw Convention does not create a cause

of action. We believe, however, that a re-examination of

the question requires a different answer.

9a

Opinion of Court of Appeals

A

At the time the United States adhered to the Convention,

it seemed obvious to all that the Convention created causes

of action for wrongful death or personal injury (Article

17), and for damage to baggage (Article 18), One court

went so far as to say, “If the Convention did not create

a cause of action in Art. 17, it is difficult to understand

just what Art. 17 did do.” Salamon v. Koninklijke Lucht-

vaart Maatschappij, N.V., 107 N.Y.S.2d 768, 773 (Sup. Ct.

1951), af’'d mem., 281 App.Div. 965, 120 N.Y.S.2d 917

(1st Dept. 1953).”

The view that the Convention does not create a cause of

action is, in large part, attributable to two cases we decided

in the 1950s, Komlos v. Compagnie Nationale Air France,

209 F.2d 426 (2d Cir. 1953), rev’g on other grounds, 111

F’, Supp. 393 (S.D.N.Y. 1952), cert. denied, 348 U.S. 820, 75

S.Ct. 31, 99 L.Ed. 646 (1954), and Noel v. Linea Aeropostal

Venezolana, 247 F.2d 677 (2d Cir.), cert, denicd, 355 U.S.

907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957) :

The Second Circuit had spoken twice, the Supreme

Court had denied certiorari, and in all subsequent

American Warsaw cases it was either assumed or

decided that the claim must be founded on some law

other than the Convention itself.

Lowenfeld & Mendelsohn, The United States and the War-

saw Convention, 80 Harv.L.Rev. 497, 519 (1967),

The analysis on which this structure of holding rests

is to be found in Judge Leibell’s opinion for the district

court in Komlos. In determining whether a cause of action

had been assigned to an insurer or remained the property

7 But see Wyman v. Pan American Airways, 181 Mise. 963, 43 N.Y.8.2d

420 (Sup.Ct. 1948), aff’d, 267 App.Div. 947, 48 N.Y.8.2d 459 (1st

Dept.), aff’d, 208 N.Y. 878, 59 N.E.2d 785, cert. denied, 324 U.S, 882,

65 8.Ct. 1029, 89 L.Ed, 1482 (1944).

10a

Opinion of Court of Appeals

of an estate, Judge Leibell held that the action envisioned

by Article 17 was one created by domestic law, except in

cases where the forum provided no analogous action. 111

F.Supp. at 401-02.

Judge Leibell relied heavily on a letter sent by Secre-

tary of State Cordell Hull to President Roosevelt on

March 31, 1934, recommending adherence ‘to the Conven-

tion. In the course of a lengthy discussion of the benefits of

adherence, Hull wrote:

The effect of article 17 (ch. III) of the Convention is

to create a presumption of liability against the aerial

carrier on the mere happening of an accident occa-

sioning injury or death of a passenger subject to cer-

tain defenses allowed under the Convention to the

aerial carrier.

[1934] U.S.Av.Rep. 240, 243. This was seen by Judge

Leibell as clear evidence that the Convention created only

presumptions, not new causes of action.

In reversing Judge Leibell on another issue, we did not

refer to the portion of his opinion discussed above, or,

indeed, even mention the Warsaw Convention. 209 F.2d

at 438-40. Nonetheless, in Noel, we followed our opinion

in Komlos, which, we said, had “impliedly agreed” with

Judge Leibell. 247 F.2d at 679. Though most of our opin-

ion in Noel was devoted to disapproving Judge Leibell’s

suggestion that Article 17 might create a cause of action

for wrongful death where domestic law did not, it is ap-

parent that—however founded—Noel, as the law of this

circuit, stands for the proposition that the Convention does

not create a cause of action. See, e.g., Husserl v. Swiss Air

Transport Co., 388 F.Supp. 1238, 1251-52 (S.D.N.Y. 1975).

Recently, an inconsistency has developed between this

rule and another line of Warsaw cases we have decided.

lla

Opinion of Court of Appeals

For example, in Reed v. Wiser, 555 F.2d 1079 (2d Cir.),

cert. denied, -— U.S. ——, 98 S.Ct. 399, 54 L.Ed.2d 279

(1977), we indicated—without addressing the question in

the instant case—that “the Convention was intended to

act as an international uniform law,” id. at 1083, and

that the substantive law of the Convention was binding on

the forum, id. at 1092. The time has come to examine the

question whether our view of the Convention as an inter-

nationally binding body of uniform air law permits us any

longer to deny that a cause of action may be founded on

the Convention itself, rather than on any domestic law.

B

1. The minutes and documents of the meetings, held in

1925 and 1929, which led to the adoption of the Conven-

tion do not specifically indicate whether the parties con-

templated that an action for damages under the Conven-

tion would arise under the terms of the treaty or those of

domestic law.’ What is made quite clear is the extent to

which the delegates were concerned with creating a uni-

form law to govern air crashes, with absolutely no ref-

erence to any national law (except for the questions of

8 Some commentators, at least, have attributed this to its being taken

for granted that the Convention itself supplied the cause of action. EF.g.,

Lowenfeld & Mendelsohn, supra, 80 Harv.L.Rev. at 517. A stronger

statement comes from the Chairman of the United States Delegation to

the Hague Conference to Amend the Warsaw Convention, G. Nathan

Calkins:

[T]he author is convinced that the draftsmen of the Convention

intended to create a right-of-action based on the contract of car-

riage; that the draftemen did in fact carry this intention out in

the Convention as signed; that it is self-execating; and therefore the

supreme law of the land today.

Calkins, The Cause of Action Under the Warsaw Convention, 26 J. Air

L. & Comm. 217, 218 (1959).

12a

Opinion of Court of Appeals

standing to sue for wrongful death, effects of contributory

negligence and procedural matters; see Articles 21, 24(2),

28(2)).

The delegates were concerned lest major air crash cases

be brought before courts of nations whose courts were not

(according to current Western standards) well organized,

nor whose substantive law (according to ‘the same stan-

dards) progressive. To avoid the “prospect of a jungle-

like chaos,” Reed v. Wiser, supra, 555 F.2d at 1092, the

Convention laid down rules that were to be universally

applicable. While it is not literally inconsistent with this

universal applicability to insist that a would-be plaintiff

first find an appropriate cause of action in the domestic

law of a signatory authorized by Article 28 to hear his

claim, it is inconsistent with its spirit.’ This inconsistency

is an argument against the rule of Noel and Komlos, for

the Convention is to be so construed as to further its pur-

poses to the greatest extent possible, even if that entails

rejecting a literal reading. Eck v. United Arab Airlines,

Inc., 360 F.2d 804, 812 (2d Cir. 1966).

2. Other articles of the Convention throw some light on

the question whether Articles 17 and 18 create causes of

action. Article 30(3) provides that in the case of trans-

portation by several carriers constituting one undivided

transportation,

[a]s regards baggage or goods, the passenger or con-

signor shall have a right of action against the first

carrier, and the passenger or consignee who is en-

titled to delivery shall have a right of action against

the last carrier, and further, each may take action

9 We note that, after Noel, not even the total lack of an appropriate

cause of action at domestic law would permit an action to be founded

on the Convention itself.

13a

Opinion of Court of Appeals

against the carrier who performed the transportation

during which the destruction, loss, damage, or delay

took place. ...

The most reasonable interpretation of this section is that

Articles 18 and 30(3) create a cause of action against the

appropriate carrier when more than one carrier is involved.

See Seth v. British Overseas Airways Corp., 329 F.2d 302,

305 (1st Cir.), cert. dented, 379 U.S. 858, 85 S.Ct. 114, 13

L.Ed.2d 61 (1964): “Thus the Convention not only imposes

liability on an air carrier for the loss of checked baggage

but also gives a passenger whose baggage is lost a right of

action to enforce that liability, Seth’s action, therefore,

seems clearly to be one arising under a treaty of the United

States.” There is no reason to believe that the Convention’s

effect is any different when only one carrier is involved.

Article 24 has been cited by proponents of both views

of the Convention. In the French version—the only offi-

cial version—the Article reads:

(1) Dans les cas prévus aux articles 18 et 19 toute

action en responsabilité, & quelque titre que ce

soit, ne peut étre exercée que dans les conditions

et limites prévues par la présente Convention.

(2) Dans les cas prévus A larticle 17, s’appliquent

également les dispositions de l’alinéa précédent. .. .

The unofficial translation reads:

(1) In the cases covered by articles 18 and 19 any

action for damages, however founded, can only be

brought subject to the conditions and limits set out

in this convention.

(2) In the cases covered by article 17 the provisions

of the preceding paragraph shall also apply ....

léa

Opinion of Court of Appeals

The crucial phrases, of course, are “however founded”

“4 quelque titre que ce soit”), and “conditions” (“condi-

tions”). There is no internal evidence to indicate whether

“however founded” was intended to refer to a number of

possible domestic law sources or to a number of possible

factual bases for the envisioned action.

As to “conditions,” that term in English does imply

that the source of the action must be sought elsewhere

than the Convention, which supplies only conditions and

limits. Nonetheless, there is some evidence for the view

that the French has not been so translated here as to pro-

vide the best interpretation of the delegates’ meaning, and

that “basis” or “terms” would be a closer translation in

this context of “conditions.” Calkins, supra, 26-J. Air L.

& Comm. at 225-26. The arguments as to Article 24 are

not conclusive either way.

3. More compelling is the evidence of how other sig-

natories of the Convention have interpreted its provisions.

The clearest picture is found in other common-law juris-

dictions. In the statute enacting the original 1929 Con-

vention in the United Kingdom, it was provided that

[a]ny liability imposed by Article seventeen of the

said [Warsaw Convention] on a carrier in respect of

the death of a passenger shall be in substitution for

any liability of the carrier in respect of the death of

that passenger either under any statute or at common

ar

Carriage by Air Act, 1932, 22 & 23 Geo. 5, c. 36, §1(4).

When the Convention was reenacted as amended at the

Hague in 1955, Carriage by Air Act, 1962, 9 & 10 Eliz. 2,

c. 27, this language was omitted, but there is no indication

15a

Opinion of Court of Appeals

that any change of substantive law was intended. No case

law since 1962 has demonstrated that the source of carrier

liability lies anywhere but in the Convention. See also

Carriage by Air Act, 1939, 3 Geo. 6, c. 12 (Canada).

V

The fact that a proposition of law has been accepted

for some twenty years is evidently a sign that circumspec-

tion is needed in seeking to overturn that proposition. We

recognize that our holdings in Komlos and Noel have be-

come the rule not of this circuit alone, but of others as

well. See, e.g., Maugnie v. Compagnie Nationale Air France,

549 F.2d 1256, 1258 (9th Cir.), cert. denied, 431 U.S. 974,

97 S.Ct. 2939, 53 L.Ed.2d 1072 (1977). Nonetheless, we are

convinced that—in light of both the paucity of analysis that

accompanied the creation of the rule and the strong argu-

ments in favor of the opposite rule—the Komlos/Noel rule

ought no longer to be followed.

We do not believe that the passing remark of Secretary

Hull in a lengthy letter was intended to state the total

of what Article 17 might provide; we do not see what

there was about our decision in Komlos that constituted

implicit agreement with Judge Leibell, and compelled the

result in Noel; we do not find technical and disputable

interpretations of the language of other articles of the

Convention conclusive in determining this important ques-

tion of policy.

We do, on the other hand, believe that the desirability

of uniformity in international air law can best be recog-

nized by holding that the Convention, otherwise univer-

sally applicable, is also the universal scurce of a right of

action. We do see that uniformity of development can bet-

ter be achieved by making federal as well as state courts

16a

Opinion of Court of Appeals

accessible to Convention litigation. We do find the opinions

of our sister signatories to be entitled to considerable

weight.

One factor which makes federal jurisdiction peculiarly

appropriate in large air crash cases was not present at the

time Komlos and Noel were decided. Section 1407 of 28

U.S.C., enacted by Pub.L.No. 90-296, 90th Cong., 2d Sess.,

82 Stat. 109 (April 29, 1968), created the Judicial Panel

on Multidistrict Litigation, and authorized the creation of

the procedures found in the Manual for Complex Litiga-

tion. These procedures, such as consolidation and assign-

ment to one expert judge, can—by reducing expenses and

expediting dispositions—benefit all parties to air disaster

actions, in which the plaintiff/victims may come from many

different parts of the country. Obviously, these procedures

are unavailable among the courts of the several states.

Finally, we do not anticipate any large increase in the

volume of federal litigation as a result of vur holding.

Most cases will fall under 28 U.S.C. § 1332, as they do

today; only when plaintiffs and defendants are all aliens,

but the United States is a nation with treaty jurisdiction,

will it be necessary to invoke 28 U.S.C. § 1331.

VI

Accordingly, we reverse Judge Weinstein’s order of dis-

missal. We leave it to his discretion to determine, in a

manner consistent with our opinion, which of Benjamins’

causes of action he may decide and which, if any, he may

not; in particular, we leave to him the questien whether to

take pendent jurisdiction over the claims against HSA.

Reversed and remanded for further proceedings consis-

tent with our opinion.

= =

-——-

17a

Opinion of Court of Appeals

Van GraaFEiLann, Circuit Judge, dissenting:

The United States Senate is presently debating the wis-

dom of a proposed Panama Canal treaty, by which Panama

will be given control of the Canal but certain rights will

be reserved to the United States. One of the main con-

cerns of those opposing ratification of the treaty is whether

they can rely upon the interpretation of its provisions

given them by the executive branch of our government.

Opinions such as the one this Court now hands down dem-

onstrate that their concern may not be ill-founded.

In 1934, when Secretary of State Cordell Hull sent the

Warsaw Convention to President Roosevelt for transmis-

sion to the Senate, he wrote that the effect of Article 17

was to “create a presumption of liability.” We may as-

sume, I believe, that the Senate relied upon the Secretary

of State’s assurances. Without question, the courts have

done so. See Noel v. Linea Aeropostal Venezolana, 247

F.2d 677 (2d Cir.) cert. denied, 355 U.S. 907, 78 S.Ct. 334,

2 L.Ed.2d 262 (1957); Komlos v. Compagnie Nationale Air

France, 111 F.Supp. 393 (S.D.N.Y. 1952), rev’d on other

grounds, 209 F.2d 436 (2d Cir. 1953), cert. denied, 348 U.S.

820, 75 S.Ct. 31, 99 L.Ed. 646 (1954) ; Ross v. Pan American

Airways, Inc., 299 N.Y. 88, 97-98 (1949). In Noel we said:

Secretary of State Hull’s letter to President Roosevelt,

dated March 31, 1934, indicated that the effect of

Article 17 on which plaintiffs rely for their argument

was only to create a presumption of liability, leaving

it for local law to grant the right of action. As one

authority has stated, the purpose of the Conventicn

was only “to effect a uniformity of procedure and

remedies.”. Orr, The Warsaw Convention, 31 Va.L.Rev.

423 (1945); see also Comment, Air Passenger Deaths,

18a

Opinion of Court of Appeals

41 Corn.L.Q. 243, 255-60 (1956); Fixel, The Law of

Aviation, § 23 (1948).

247 F.2d at 679 (footnote omitted).

| Completely reversing our field, we now hold that Article

17 creates a cause of action for wrongful death. As justi-

fication for this turnabout, the majority relies in part upon

the “paucity of analysis that accompanied the creation

of the rule.” I am at a disadvantage in challenging this

statement, because Judge Lumbard, the writer of the ma-

jority opinion, also wrote Noel. However, I am satisfied

that Judge Lumbard gave Noel the same careful and

thoughtful consideration he gives to every case, and which

he has given to this one. Moreover, i am convinced that

the numerous courts who have adopted the reasoning of

Noel, see, e.g., Maugnie v. Compagnie Nationale Air

France, 549 F.2d 1256, 1258 (9th Cir.), cert. dented, 431

U.S. 974, 97 S.Ct. 2939, 53 L.Ed.2d 1072 (1977), did not do

so without their own thoughtful analysis of its merit. In

short, I am constrained to conclude, as Judge Moore did

when dissenting in Lisi v. Alitalia—Linee Aeree Italiane,

S.p.A., 370 F.2d 508, 515 (2d Cir. 1966), aff’d by an equally

divided court, 390 U.S. 455, 88 S.Ct. 281, 19 L.Ed.2d 276

(1968), that the majority no longer approves of the terms

of the Convention and therefore by judicial fiat has de-

cided to rewrite it. In the process, the majority draws

within the ever-widening ambit of federal jurisdiction an

entirely new class of cases which Congress probably never

intended should be there.

A court should proceed cautiously when asked to over-

turn a well-settled doctrine of law. This is especially

true in this case because a sensitive question concerning

the scope of federal jurisdiction is involved. But even

more importantly, cireumspection is required here because

19a

Opinion of Court of Appeals

amendments to the Warsaw Convention that may end this

entire controversy are currently pending.

We have pointed out recently that “[t]he Warsaw Con-

vention is not a treaty that has mouldered on the books.

On the contrary it has had agonizing reappraisal by the

Executive and Legislative branches. .. .” Reed v. Wiser,

555 F.2d 1079, 1093 (2d Cir.), cert. denied, —— U.S. —,

98 S.Ct. 399, 54 L.Ed.2d 279 (1977). One result of this re-

appraisal has been the Guatemala City Protocol to amend

the Warsaw Convention.' The United States has signed the

Protocol, and ratification is now pending before the Senate.

Hearings have been held as recently as July, 1977.2 The

Protocol makes extensive revisions in the Convention’s pro-

visions concerning liability. See R. Boyle, The Guatemala

Protocol to the Warsaw Convention, 6 Cal.W.Int’l L.J. 41

(1975). In particular, the Protocol amends Article 17 to

impose absolute liability on the carrier. Some commentators

have expressed the view that the amendments to Article 17,

if ratified, will legislatively overrule the Noel decision. R.

Boyle, supra, 6 Cal.W.Int’] L.J. at 74; Note, The Guate-

mala City Protocol, 5 N.Y.J.Int’l L. 313, 324-27 (1972).

But whether or not the amendments will have that result

is unimportant; the mere fact that they are pending is a

clear indication that this matter is one which should be

left to the coordinate branches of our Government, at

least in the absence of some compelling reason. No such

reason is presented by this case. Plaintiff can bring his

1 Protecol to Amend the Convention for the Unification of Certain Rules

Relating to International Carriage by Air Signed at Warsaw on 12

October 1929 as amended by the Protocol Done at the Hague on 28

September 1955, done at Guatemala City March 8, 1971.

2 Two related Protocols Done at Montreal on September 25, 1975: Hear-

ings on Ex. B, Before the Senate Comm, on Foreign Relations, 95th Cong.,

Ist Sess. (July 26, 1977).

20a

Opinion of Court of Appeals

action in a number of other forums. Our continued ad-

herence to Noel causes no injustice. Under these circum-

stances, I would decline to reconsider the question of

whether Article 17 creates a cause of action.

_Even if I were persuaded that a re-examination of Noel

was appropriate at this time, I would not be convinced

that it was incorrectly decided. Article “17 states that

“[t]he carrier shall be liable for damage sustained in the

event of the death or wounding of a passenger... .” and

the plain language of this article is the majority’s strongest

argument that the Convention created a right to sue. How-

ever, a close analysis of this section reveals that its mean-

ing is not as clear as might appear on its face.

At the time the Convention was drafted it was generally

accepted in this country that a cause of action for wrongful

death could not be maintained in the absence of a specific

statute authorizing such suit. See, e.g., Aetna Life Insur-

ance Co. v. Moses, 287 U.S. 530, 539, 53 S.Ct. 231, 77

L.Ed. 477 (1933); Salsedo v. Palmer, 278 F. 92 (2d Cir.

1921). All American states have such statutes, but the

statutes differ widely with respect to “the persons for

whose benefit a death action may be maintained, and

the measure, elements and distribution of damages re-

coverable.” 1 S. Speiser, Recovery for Wrongful Death

§1.9 at 29 (2d ed. 1975) (footnotes omitted). Although

the statutes take different approaches, they are alike

in the fact that they all expressly deal with these

crucial questions.’ Article 17 of the Convention, on the

other hand, does not specify who are the beneficiaries of

3 The different wrongful death statutes in effect in the United States

are collected in 2 S. Speiser, supra, appendix A, at 644-787. The statutes

of the other countries in the world are found in id., appendix B, at

789-859. The briefest survey of these statutes shows that virtually every

one, whether domestic or foreign, specifies who are the beneficiaries of

the wrongful death action and what type of damages may be recovered.

21a

Opinion of Court of Appeals

the action, nor what types of damages may be recovered.

Indeed, the Convention provides that an action for a pas-

senger’s death is brought “without prejudice to the ques-

tions as to who are the persons who have the right to

bring suit and what are their respective rights.” Article

24(2). Thus, Article 17 at best goes only half way towards

creating a cause of action for wrongful death. See Zousmer

v. Canadian Pacific Air Lines, 'Ltd., 307 F. Supp. 892, 901

(S.D.N.Y. 1969).‘ I am not persuaded that this legislatively

created “liability”, which designates neither the benefici-

aries of the right of recovery nor the measure of their

damages creates a cause of action. The phrase “the carrier

shall be liable” had a different purpose, as becomes ap-

parent when Article 17 is examined in the context of the

entire Convention.

The purpose of Warsaw was “to effect a uniformity of

procedure and remedies.” Noel, 247 F.2d at 679 (quoting

Orr, The Warsaw Convention, 31 Va.L.Rev. 423 (1945)).

To accomplish this goal, the drafters could have created a

single cause of action to be asserted wherever suit was

brought for wrongful death in international air travel.

Alternatively, the drafters could have created a set of con-

ditions and limitations uniformly applicable to all the

various causes of action created by local law of the coun-

tries around the world. The drafters’ choice of the latter

alternative is evidenced by Article 24, which provides that

any action “however founded” may only be brought “sub-

ject to” the “conditions and limits set out in [the] conven-

4 In Bauch v. United Instruments, Inc., 548 F.2d 452, 457 (3d Cir. 1976),

an ection brought under the Federal Aviation Act, the Court said “For

an essential element of such a cause of action, express or implied, is

injury resulting from such a statutory violation which has been inflicted

upon the plaintiff in his capacity as a member of the protected class

and which has caused him measurable damage.”

22a

Opinion of Court of Appeals

tion.” Husserl v. Swiss Air Transport Co., 388 F.Supp.

1238, 1251-52 (S.D.N.Y.1975). Thus, no matter whether

the action is founded in tort or contract, whether in do-

mestic or foreign law, the limitations and conditions of

the Convention will apply. See Reed v. Wiser, 555 F.2d at

1092.°

Within this structure, Article 17 plays an important

role. The basic trade-off under Warsaw was that the car-

rier was given a limitation on liability while the claimant

gained a simplified recovery procedure. Hearings on Ea.

B, note 2 supra, at 11 (statement of L. Kamm). See also

Pierre v. Eastern Airlines, 152 F.Supp. 486 (D.N.J. 1957).

The claimant’s task was simplified by shifting the burden

of proof to the defendant. The manner in which the draft-

ers shifted the burden is important. By stating that “the

carrier shall be liable” in Article 17, the drafters created a

presumption of liability which could then be rebutted under.

Article 20(1) by the carrier’s proof that it was free from

negligence. A. Lowenfeld & A. Mendelsohn, The United

States and the Warsaw Convention, 80 Harv.L.Rev. 497,

519-22 (1967). The new burden of proof, like the limitation

on liability, is applicable to any action “however founded.”

Viewed in this light, I think it entirely reasonable to con-

clude, as we did in Noel, that the phrase “the carrier shall

be liable” does not itself create a right to sue, but merely

5 In Reed, after a comprehensive review of the Convention, we held thut

the term “carrier” as used therein included the carrier’s employees, so

that the Convention’s limitation of liability provisions applied in an

action brought against a pilot. We did not hold, however, that the

Convention created a cause of action against the pilot. Instead, we

pointed out that in some countries pilots may be held liable for dam-

ages under the common law doctrine of res ipsa loquitur and in other

countries under the civil law doctrine of absolute liability. We carried

out the intent of the Convention by limiting their liability without

regard to the theory upon which it was based.

23a

Opinion of Court of Appeals

conditions the cause of action generated by the underlying

substantive law.

The majority finds a right of action in the language of

Article 17 mainly because it believes that “the desirability

of uniformity in international air law can best be recog-

nized” in this way. Even were I to agree with this ap-

proach, I should not be sure that the majority opinion

promotes uniformity. There is no reason to believe that

the new right of action is exclusive.’ State and federal

rights of action will co-exist and may be pleaded in the

Same case. Moreover, federal courts will be required to

supply the elements missing in the Convention’s “cause of

action”. Unless the federal courts develop a body of fed-

eral common law, they must look to other sources of law

for these elements. They must look to local law to deter-

mine whether a plaintiff was guilty of contributory negli-

gence, Article 21, whether his damage was caused by the

earrier’s wilful misconduct, Article 25, whether he has a

right of recovery for wrongful death, and the measure of

his damages, Article 24(2). There can be no uniformity

here.

I fear that when my brothers discuss uniformity, they

are really talking about federal jurisdiction, State courts

handle Warsaw Convention matters as wisely and fairly

as do federal courts and with greater knowledge of the

state law that must be applied. I see no reason to upset

6 Although the majority does not expressly address the question, there

is good reason to believe that the right is not exclusive. Certainly an

exclusive right would be inconsistent with the “however founded” lan-

guage in Article 24. Furthermore, Calkins, in the article upon which

the majority relies, viewed the right as non-exclusive. J. Calkins, The

Cause of Action Under the Warsaw Convention (parts I & IT), 26 J.

Air.L. & Com, 217 & 323, 327 (1959).

a long-standing rule of law simply to give the plaintiff

24a

Opinion of Court of Appeals

access to the federal courts.’

For the foregoing reasons, I respectfully dissent.

7

One reason given by Calkins for overruling Noel is no longer persua-

sive. One of his main concerns was that redress be available whenever

an American was killed or injured in international air travel, and recog-

nition of a created right of action would have ensured this. At the

time Calkins wrote, it was possible that an American court, applying the

traditional place-of-the-wrong conflicts rules, might

25a

Order of the District Court

UNITED STATES DISTRICT COURT

Eastern Disrricr or New York

Docket No. 74-C-590

ApRaHAM Bensamiys, ete.,

vs.

British Evropean Arrways, et al.

It is, on this 17th day of March, 1977

ORDERED, that this action is hereby dismissed.

Jutes B. Wernstern

United States District Judge

26a

Oral Decision of the District Court

UNITED STATES DISTRICT COURT

Eastern District or New York

73 C 341

MDL No. 147

74 C 590

ABRAHAM BENJAMINS, as Personal Representative

of the Estate of Hilde Benjamins, deceased,

Plaintiffs

—against—

British EvropeaN Airways,

Hawker Sippetey Aviation, Lrp., and

Hawker Simppetey Grove, Lrp.,

Defendants

United States Courthouse

Brooklyn, New York

February 23, 1977

10:00 o’clock A.M.

Before:

Honorable Jack B. Wetnstern,

U.S.D.J.

EMMANUEL Karr

Official Court Reporter

27a

Oral Decision of the District Court

Appearances:

Attorneys for Plaintiff:

Ronawtp L. M. GotpMan

and ASSOCIATES

By: Ronaup L. M. Gotpman, Esq.

Of Counsel

and

Messrs. KremnDiter & KREINDLER

By: Sranuey J. Levy, Esq.

Of Counsel

Messrs. Connon & ForsytH

By: Ronatp E. Pacg, Esq.

Of Counsel

Messrs. Menves & Mount

By: James J. Finnerty, Jr., Esq.

and

MattHew J. Corrican, Esq.

Of Counsel

StepHen H. Macxkavut, Esq.

Garr, Gam & Conason,

Attorneys at Law;

By: Hersert 8. Scumertz, Esq.

Of Counsel

28a

Oral Decision of the District Court

[3]

(Following discussion between the parties, Judge Wein-

stein made the following statement.)

The Court: Plaintiff contends that the Warsaw Treaty

establishes an independent right of action or a claim for

relief as opposed to Federal jurisdiction. °

There is a suggestion in Smith versus Canadian Pacific

Airways Limited, 452 F 2nd, 798, a Second Circuit 1971

case, indicating a substantial basis for this contention.

See also G. Nathan Hawkins, Jr., “the Cause of Action

Under the Warsaw Convention,” 26 Journal of Air Law and

Commerce 323 (1959).

There is also support for the position in the First Circuit,

Seth versus British Overseas Airways Corporation, 329 F

2nd 202, First Circuit 1964.

This Court believes it is bound by the Noel versus Linea

Aeropostal Venezolona 247 F. 2nd 677, Second Circuit,

1957. ~

See also Husserl versus Swiss Air Transport Co., Ltd.,

351 Supp. 702, 706, a Southern District of New York 1972

case, affirmed without opinion essentially for the reasons

set forth by Judge Tyler in a well-considered opinion, Greca

Husser! versus Swiss Air Transport Co., 485 F’. 2nd, 1240,

a Second Circuit 1973 [£4] case.

This matter is an important one and should be resolved

by the Circuit Court after a full consideration and analysis.

The Court has found no such full consideration and analy-

sis in any of the Second Circuit decisions.

The case of Abraham Benjamins, as Personal Represen-

tative of the Estate of Hilda Benjamins, Deceased, is dis-

missed.

. e * _ *