# Petition — British European Airways v. Benjamins

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 439 U.S. 1114

## Text

[/~ Supreme Cou, U7

| PILED
NSS elec 7”
Mil H AE RODAK R., CLERK |

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.

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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.

= =
-——-

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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 * _ *

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1408%3A1. Public record. Not legal advice.