Opposition — British European Airways v. Benjamins

IN THE

Supreme Court of the United

October Term, 1978

No. 78-129

BRITISH EUROPEAN AIRWAYS,

Petitioner,

vs,

ABRAHAM BENJAMINS, as Personal Representative of

the Estate of Hilde Benjamins, deceased, HAWKER

SIDDELEY AVIATION, LTD., and HAWKER SIDDELEY,

Group, LTD.,

Respondents.

Brief in Opposition to the Petition for a Writ of Cer-

tiorari to the United States Court of Appeals for

the Second Circuit.

RONALD L. M. GOLDMAN,

13737 Fiji Way,

Marina Del Rey, Calif. 90291,

Counsel for Respondent, Abraham Ben-

jamins, as Personal Representative of

the Estate of Hilde Benjamins, De-

ceased.

Parker & Son, Inc., Law Printers. Los Angeles. Phone 724-6622

SUBJECT INDEX

Page

a cE asclikiapials 1

Additional Treaty Provisions Involved .................. 2

I 0 coi ise esenekescelinsanntnensvionsn 4

Mee Ph Rielle Bnipa are Mah |W RENCE EER 4

B. Proceedings in the Court Below .................... 5

hy | Re me ON aces css sccdececaceonss 5

2. The Court of Appeals .......................... 5

Reasons for Denying the Writ ..............20..0.22.2....---- 7

A. The Second Circuit Court of Appeals Deci-

sion Herein Is Based Upon a Thorough,

Thoughtful and Careful Review and Analy-

sis of Warsaw Convention Law and Policy,

Both Domestic and International ................ 7

B. The Decision Below Provides a Basis for

Consistent and Uniform Application of the

Warsaw Convention, Implements the Stated

Purposes and Objectives of the Treaty, and

Thus Avoids the “Jungle-Like Chaos” Dif-

fering Interpretations Would Encourage in

International Air Disaster Litigation ........ 11

C. There Is No Need for the Supreme Court to

Setee TE SN: cock i ein 13

CI ig iui ih in cecnieianieibnish chscahasgnssuPoniadtclons 15

Appendix. Opinion—Corrected Pursuant to Re-

spondent’s Motion ................:0::ceeeeeeeeeee App. p. 1

ii.

TABLE OF AUTHORITIES CITED

Cases Page

Benjamins v. BEA (1978) 572 F.2d 913 ~....20.........

REDDY Os Wh ele 6, 7, 8, 9, 10, 11, 12, 13, 14,

Brazil: Brazilian Air Code (1938) Ch.V ..00000000....

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

Chile: Hamilton, Manuel de Derecho Aereo, p. 449

CTD anni ckccsccecicdvaa cetacean aaa

England: Carriage by Air Act (1932) 22 and 32

Geo.5, c.36, $1(14), reenacted, 9 and 10 Eliz.2,

Dik F istinnscunsnensesssnnshinesnhiennsnceanenseeianidanan aaa

France: Juglart, Traite Elementaire de Droit Aerien,

». FRUIT? cick ee eee

Italy: Italian Naval Act of 1924 (1924); Revu Juri-

dique de la Locomotion Aeriennes 51, Art.39 §2

Komlos v. Compagnie Nationale Air France (2d

Cir. 1953) 209 F.2d 436: 111 F.Supp. 393 (S.D.

1952); 348 U.S. 820; 75 S.Ct.31; 99 L.Ed. 646

CTE). oscraieissarceeionssninhetiomenanpispietnigieenaenen

Mexico: Rigalt, Pricipios de Derecho Aereo, p.124

BOG (IDI) naiveeisscinisncsateseciesscitedeaceeeeee

Noel v. Linea Aeropostal Venezolana (2d Cir.

1957) 247 F.2d 677; 355 U.S. 907; 78 S.Ct. 334;

SD BiBNG, DO DGB wisensisscsttisennienenannaiaeanee 7,

Reed v. Wiser (2d Cir. 1977) 555 F.2d 1079; 434

U.S. 922; 98 S.Ct. 399; 54 L.Ed. 2d 279 ....6, 9,

15

10

10

10

10

10

12

ili.

Page

Salamon v. Koninklijke Luchtvaart Maatschappij,

N.V., 107 N.Y.S. 2d 768; 773 (S.Ct. 1951),

aff'd mem., 281 App.Div. 965; 120 N.Y.S. 2d

eo. . anacnccsenccecccesscs

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

302, 305 (Ist Cir.); cert. denied, 379 U.S. 858:

85 S.Ct. 114; 13 L.Ed. 2d 61 (1964)

nasenssseseunsssrncaseraesccsasessenssnensecasee-seacesesonsns 7, as, 2,

Smith v. Canadian Pacific Airways, Ltd. (2d Cir.

ec cccccsccnenndecssssnccccens ee be

STATUTES AND OTHER AUTHORITIES

60 Statutes at Large, p. 1499 .........00..

Neeson ssasccssassssnescanccncecee a

Congress, H.R. 9622, 95th Cong. 2nd Session

(1978), Abolition of Diversity of Citizenship

Nene cesccnasencacnuseccss

Congress, H.R., 95th Cong. Ist Session, Serial No.

21, Diversity of Citizenship Jurisdiction/Magis-

trates Reform, Hearings Before the Subcommittee

on Courts, Civil Liberties and the Administration

of Justice of the Committee on the Judiciary ......

Harlan, Justice. 33 Australian Law Journal, p. 108

ec cnemenseeene

Loweiifeld and Mendelsohn, The United States and

the Warsaw Convention, 80 Harv. L.Rev., pp.

aaa cakinsnancancnscssnncecseseecscneces

Stern, Denial of Certiorari Despite a Conflict, 66

EN SS > SD

11

13

12

14

14

13

12

IN THE

Supreme Court of the United States

October Term, 1978

No. 78-129

BRITISH EUROPEAN AIRWAYS,

Petitioner,

VS.

ABRAHAM BENJAMINS, as Personal Representative of

the Estate of Hilde Benjamins, deceased, HAWKER

SIDDELEY AVIATION, LTD., and HAWKER SIDDELEY,

Group, LTD.,

Respondents.

Brief in Oppositiop to the Petition for a Writ of Cer-

tiorari to the United States Court of Appeals for

Respondent prays that the petition for writ of cer-

tiorari to review the judgment of the United States

Court of Appeals for the Second Circuit entered in

this case on March 6, 1978, be denied.

QUESTIONS PRESENTED.

1. In a Warsaw Convention case, where the ticket

was purchased in the United States, does the U.S.

District Court have subject matter jurisdiction pursuant

to 28 USC §1331, as a matter “arising under” a

treaty of the United States?

2. Does Article 28(1) of the Warsaw Convention

expressly provide for subject matter jurisdiction

in the international or treaty sense?

a

3. Is the fundamental objective of the Warsaw Con-

vention to provide an international system of liability

and litigation rules, and if so, have causes of action

thereunder been stated?

4. Does Article 17 create a cause of action for

wrongful death?

ADDITIONAL TREATY PROVISIONS INVOLVED.

CHAPTER III. Liability of the Carrier

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 sustained took place during the trans-

portation by air.

(2) The transportation by air within the mean-

ing of the preceding paragraph shall comprise

the period during which the baggage or goods

are in charge of the carrier, whether in an airport

or on board an aircraft, or, in the case of a

landing outside an airport, in any place whatso-

ever.

(3) The period of the transportation by air

shall not extend to any transportation by land,

by sea, or by river performed outside an airport.

If, however, such transportation takes place in

the performance of a contract for transportation

by air, for the purpose of loading, delivery or

transshipment, any damage is presumed, subject

to proof tc the contrary, to have been the result

of an event which took place during the transporta-

tion by air.

_

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.

Article 28

(1) An action for damages must be brought,

at the option of the plaintiff, in the territory

of one of ihe High Contracting Parties, either

before the court of the domicile of the carrier

or of his principal place of business, or where

he has a place of business through which the

contract has been made, or before the court at

the place of destination.

(2) Questions of procedure shall be governed

by the law of the Court to which the case is

submitted.

Article 30

(1) In the case of transportation to be per-

formed by various successive carriers and falling

within the definition set out in the third paragraph

of Article 1, each carrier who accepts passengers,

baggage or goods shall be subject to the rules

set out in this convention, and shall be deemed

to be one of the contracting parties to the contract

of transportation insofar as the contract deals with

that part of the transportation which is meee

under his supervision.

a

(2) In the case of transportation of this nature,

the passenger or his representative can take action

only against the carrier who performed the trans-

portation during which the accident or the delay

occurred, save in the case where, by express agree-

ment, the first carrier has assumed liability for

the whole journey.

(3) As regards baggage or goods, the passenger

or consignor shall have a right of action against

the first carrier, and the passenger or consignee

who is entitled to delivery shall have a right

of action against the last carrier, and further, each

may take action against the carrier who performed

the transportation during which the destruction,

loss, damage, or delay took place. These carriers

shall be jointly and severally liable to the passenger

or to the consignor or consignee.

STATEMENT OF THE CASE.

A. The Facts.

Abraham Benjamins, and his wife, Hilde, were both

permanent resident aliens domiciled in California. Hilde

Benjamins purchased passenger tickets for the fatal

British European Airlines (hereinafter BEA) flight in

question in Los Angeles, which provided for “interna-

tional transportation” within the meaning of Article

1 of the Warsaw Convention. The point of departure

and destination within the meaning of the Treaty, as

provided in the tickets, was Los Angeles, California.

On April 17, 1974, Respondent, as personal representa-

tive of the estate of Hilde Benjamins, deceased, for

the benefit of himself and his two children, filed a

complaint for wrongful death and conscious pain and

suffering, against petitioner BEA, and respondent,

—

Hawker Siddeley Aviation, Ltd., and Hawker Siddeley

Group, Ltd., arising out of the worst air disaster

in British aviation history. All 112 fare-paying pas-

sengers, including plaintiff's decedent, and six crew

members, died when the BEA owned and operated

jet aircraft crashed on June 18, 1972, shortly after

take-off.

B. Proceedings in the Court Below.

1. The District Court:

Referring to the uncorrected version of the District

Court’s oral opinion, petitioner has not quite accurately

reflected the Court’s view. The opinion, corrected pur-

suant to respondent’s motion, is printed herein in the

Appendix at pp. la-lla. The Court referred to the

opinions in favor of Respondents’ position found in

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

(ist Cir.), cert. denied, 379 U.S. 858 (1964), and

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

798 (2d Cir. 1971). Judge Weinstein realized the

need for a new evaluation of the questions presented

and stated:

“This Court believes it is bound by the dicta

in the Noel v. Aeropostal Venezolana 247 F.2d

677 (2d Cir. 1957). . . . This matter is an

important one and should be resolved by the Cir-

cuit Court after a full consideration and analysis.

The Court has found no such full consideration

and analysis in any of the Second Circuit de-

cisions.” (emphasis added).

Brief in Opposition, Appendix p. 2a.

2. The Court of Appeals:

On appeal of the dismissal of the Second Amended

Complaint, the Second Circuit Court of Appeals upheld

ilies

the internationally acknowledged view that Article 17

created a cause of action, and therefore, that jurisdiction

properly vested in the District Court under 28 USC

§1331. The Second Circuit panel denied petitioner’s

Petition for Rehearing. The entire Second Circuit fol-

lowed suit in rejecting the Petition for Rehearing en

banc without any, “active judge or judge who was

a member of the panel having suggested that a vote

be taken on said suggestion.” Benjamins y. BEA, 572

F.2d 913 (1978); Petition, Appendix 2a.

The Second Circuit held that Article 17 of the

Warsaw Convention creates a cause of action.

“(T]he desirability of uniformity in interna-

tional air law can best be recognized by holding

that the Convention, otherwise universally appli-

cable, is also the universal source of a right of

action.”

Benjamins v. BEA, supra, 572 F.2d at 919;

Petition, Appendix p. 15a.

The inconsistency of prior rulings on the questions

raised by respondent with the spirit and purpose of

the Warsaw Convention was of great concern to the

Court. Benjamins v. BEA, supra, 572 F.2d at 918;

Petition, Appendix 12a. The decision below reaches

the conclusion that more certain availability of the

federal forum in Convention litigation would promote

uniform development of Convention law and treatment

of Warsaw Convention Cases, and thus obviate the

“jungle-like chaos” which otherwise results (Reed v.

Wiser, 555 F.2d 1079 (2d Cir.), cert. denied, 434

U.S. 922 (1977)); only thus are the objectives of

the Convention truly met. Benjamins v. BEA, supra,

572 F.2d at 918; Petition, Appendix 15a,

stliiien

REASONS FOR DENYING THE WRIT.

A. The Second Circuit Court of Appeals Decision

Herein Is Based Upon a Thorough, Thoughtful and

Careful Review and Analysis of Warsaw Conven-

tion Law and Policy, Both Domestic and Interna-

tional.

The view that the Convention did not create a cause

of action was attributable to two cases decided in

the 1950’s. Komlos v. Campagnie 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), and Noel v. Linea Aeropostal

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

355 U.S. 907, 78 S.Ct. 344, 2 L.Ed. 2d 262 (1957).

District Court Judge Jack Weinstein urged the Court

to reconsider these rulings, finding them lacking in

“full consideration and analysis”. Brief in Opposition,

Appendix p. 3a. Circuit Judge Lombard, author of both

Noel and Benjamins confessed the Noel analysis to

be insubstantial and undertook a complete review.

Finding no executive imprimatur, the Court of Ap-

peals dismissed Noel’s excessive reliance and question-

able interpretation of an isolated statement from Secre-

tary Hull’s letter to President Roosevelt. (Reprinted

in full, Brief in Opposition, Appendix pp. 6a-11la)

“We do not believe that the passing remark

of Secretary Hull in a lengthly letter was intended

to state the total of what Article 17 might pro-

vide....”

Benjamins v. BEA, supra, 572 F.2d at 919;

Petition, Appendix p. 15a.

Hull had said,

“The effect of Article 17 is to create a presump-

tion against the aerial carrier subject to certain

defenses on the happening of an accident.” (em-

phasis added) Brief in Opposition, Appendix p.

10a.

He analogized this to the doctrine of res ipsa loquitur,

an evidentiary presumption, to explain the operation

of the “presumption in favor of the passenger, lightening

the would-be plaintiff's burden of proof”, in light of

the Convention’s compromise to limit carrier damages.

“It will be observed that while under the terms

of the Convention, passengers and shippers require

certain definite rights in international air transpor-

tation, the aerial carriers obtain the benefits of

a limitation of liability.”

Brief in Opposition, Appendix p. 10a.

This discussion illustrated for the President the inter-

relationships of the provision designed to effect the

purposes of the treaty as a whole, which were, and are,

to alleviate:

“the chaotic conditions which now confront Ameri-

can international air-transport operators with re-

spect to matters coming within the purview of

the Convention.”

Brief in Opposition, Appendix p. 11a.

The Court of Appeals adopted Secretary Hull’s view

of the Convention’s purpose:

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

desirability of uniformity in international air law

can best be recognised by holding that the Con-

vention; otherwise universally applicable, is also

the universal source of a right of action.”

Benjamins v. BEA, supra, 572 F.2d at 919;

Petition, Appendix p. 15a.

we

Recent authority was of paramount concern to the

Court of Appeals. After a thorough review of case

law since Noel it concluded:

“[nJo case law since 1962 has demonstrated that

the source of carrier liability lies anywhere but

in the convention.”

Benjamins v. BEA, supra, 572 F.2d at 919;

Petition, Appendix p. 15a.

Recent law is also moving away from Noel. The

Second Circuit decision, Reed v. Wiser, 555 F.2d

1079, cert. denied, 434 U.S. 922, 98 S.Ct. 399, 54

L.Ed. 2d 279 (1977) was “significant new authority”,

raising substantial inconsistency requiring reconciliation

within the Circuit. Benjamins v. BEA, supra, 572 F.2d

at 917; Petition, Appendix p. 10a. Additionally, the

Warsaw Treaty itself is not a static document.

“The Warsaw Convention is not a treaty that

has mouldered on the books. It has had agonizing

reappraisal by the Executive and Legislative

branches. . . .”

G. Nathan Calkins, Jr. Esq., Chairman of the United

States Delegation to The Hague Conference to amend

the Warsaw Convention, provided further analysis in

support of the Court’s position. Benjamins v. BEA,

supra, 572 F.2d at 917; Petition, Appendix p. lla.

The creation of the Judicial Panel on Multi-District

Litigation and procedures in the Manual for Complex

Litigation lent also telling modern support for the

reasonableness of the Court of Appeals decision.

Most “compelling” to the Court was evidence of

interpretation by other signators of the Convention,

not considered in Noel. The effect of the Benjamins

decision is merely to bring the Second Circuit into

= ae

accord with world-wide interpretation that Article 17

of the Warsaw Convention created a cause of action

against the carriers and in favor of passengers or their

personal representatives.’

“The clearest picture... [was] ... in other

common-law jurisdictions.”

Benjamins v. BEA, supra, 572 F.2d at 918;

Petition, Appendix p. 14a.

The United Kingdom, Canada and Anstralia have

also enacted legislation providing that in any action

covered by the Convention it. and it alone is the

source of liability in substitution for any other

liability of the carrier under “any statute or common

law”.?

Benjamins v. BEA, supra, 572 F.2d 919; Peti-

tion, Appendix p. 14a.

The Court of Appeals at the same time moved into

line with current United States interpretation of other

provisions of the Convention. The Circuits are in agree-

ment that Article 18 of the Convention creates a cause

of action, and the Benjamins decision cites, with ap-

proval,’ the following:

“[T]he most reasonable interpretation is that

Article 18 and 30(3) create a cause of action.

1For Example: Italy: Italian Navigation Act of 1924

(1924); Revue Juridique de la Locomotion Aeriennes 51,

Art. 39 §2. Brazil: Brazilian Air Code (1938) Ch.V. Chile:

Hamilton, Manuel de Derecho Aereo, p. 449 (1950). France:

Juglart, Traite Elementaire de Droit Aerien, p. 240 (1952).

Mexico: Rigalt, Principios de Derecho Aereo, p. 124 §66

(1930).

*England: Carriage by Air Act (1923) 22 and 32 Geo.

5, c.36, §1(4), reenacted, 9 and 10 Eliz.2, c.27. Canada:

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

*Benjamins v. BEA, supra, 572 F.2d at 918; Petition, Appen-

dix p. 13a.

oa § Pe

[It] gives a passenger whose baggage is lost a

right of action to enforce that liability. Seth’s ac-

tion, therefore, seems clearly to be arising under

a treaty of the United States.” Seth v. British

_ Overseas Airways Corp. (1964) (1st Cir.), cert.

denied, 379 U.S. 858, 85 S.Ct. 114, 13 L.Ed.2d

61.

The Benjamins Court concluded,

“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

damages to baggage (Article 18). One Court went

so far as to say ‘If the convention did not create

a cause of action in Article 17, it is difficult

to understand just what Article 17 did do.’ Sala-

mon v. Koninklijke Luchtvaart Maatschappij

N.V., 107 N.Y.S. 2d 768, 773 (S.Ct. 1951),

affd mem., 281 App. Div. 965, 120 NY.S. 2d

917 (1st Dept.)” (emphasis added).

Benjamins v. BEA, supra, 572 F.2d at 917;

Petition, Appendix 9a.

B. The Decision Below Provides a Basis for Consistent

and Uniform Application of the Warsaw Conven-

tion, Implements the Stated Purposes and Objec-

tives of the Treaty, and Thus Avoids the “Jungle-

Like Chaos” Differing Interpretations Would En-

courage in International Air Disaster Litigation.

Benjamins resolved inherent difficulties arising within

the Second Circuit and between the Second Circuit

and other accepted American interpretations. An op-

posite result in Benjamins would have led to inherent

difficulty with the unchallenged conclusion of Smith

cotiiiien

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

Cir. 1971), that the Warsaw Convention was a true

self-executing treaty. It also resolved a potentially se-

rious conflict with the accepted view in Seth v. British

Overseas Airways Corp., 329 F.2d 302 (ist Cir.),

cert. denied, 379 U.S. 858 (1964), preventing the

otherwise absurd result that District Courts had jurisdic-

tion over minuscule claims involving baggage, but not

major claims involving personal injury and death. Addi-

tionally, a new intra-circuit conflict had arisen, of which

the Second Circuit felt obliged to take cognizance.

See Reed v. Wiser, supra, 555 F.2d 1079 at 1092.

“We indicated—without addressing the question

in the instant case—that the ‘Convention was in-

tended to act as an internationally uniform law

and that the substantive law of the Convention

was binding on the forum.”

Benjamins v. BEA, 572 F.2d 917; Petition,

Appendix p. 11a.

To reconcile internal views and promote a clear

understanding of the Convention, the Court announced:

“(T]he 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.” (citations omitted).

Benjamins v. BEA, supra, 572 F.2d at 917;

Petition, Appendix p. 11a.

In the field of Warsaw Convention interpretation,

the Second Circuit has been a leader. Lowenfeld and

Mendelsohn, The United States and the Warsaw Con-

vention (1957) 80 Harv. L.Rev. 497, 519. When

a: oe

it appears that, as a result of future cases in the Courts

of Appeals, the conflict, if any, will be resolved, the

Supreme Court should refrain from premature interven-

tion. Mr. Justice Harlan, “Some aspects of the judicial

process in the Supreme Court of the United States,”

33 Australian Law Journal 108 (1959). In the light

of the likelihood of reconciliation, the Benjamins de-

cision has not created a square, irreconcilable conflict

of the sort requiring Supreme Court review. Stern,

Denial of Certiorari Despite a Conflict (1953) 66

Harv. L.R. 465.

C. There Is No Need for the Supreme Court to Decide

This Case.

Petitioner has raised the spectre of a multitude of

small cases pouring into the Federal Courts due to

a release of the controls by the Second Circuit. It

ignores not only the expressed concern of the second

Circuit, “. . . in reducing expenses, expediting disposi-

tions, and benefiting all parties to air-crash disasters”,

Benjamins v. BEA, supra, 572 F.2d at 919; Petition,

Appendix p. 16a, but the realities of Convention law

as it existed prior to the Benjamins ruling. Realistically,

only baggage is a potential source of minor claims

in aircraft disaster litigation. Seth v. British Airways,

Ltd., supra. Where personal injury or death, within

the purview of Article 17, are involved, damages are

of substantial magnitude and, if not, are generally

settled within the limits of liability, which is absolute

since the execution of the Montreal Agreement, 60

Stats. 1499. The substantial cost of litigation is a

self-limiting factor to the bringing of small injury cases

in international airline disaster cases.

ae

There is no evidence, and the court so found, that

Benjamins would increase the volume of litigation. Nor

does Benjamins conflict with legislation currently pend-

ing before Congress. H.R. 9622, 95th Cong., 2d Session

(1978), Abolition of Diversity of Citizenship Jurisdic-

tion, is designed to achieve a reduction of case-load

in the federal courts, but its primary purpose is to

bring about:

“a proper jurisdictional balance between the fed-

eral and state court systems in the light of basic

principles of federalism.”

Report: Abolition of Diversity of Citizenship

Jurisdiction, House of Representatives, 95th

Congress, 2d Session, No. 95-893.

Establishing a rational basis of jursidiction, rather

than the mere amount in controversy, is the underlying

goal of the legislation. Powe’s testimony, cited by Peti-

tioner, does not even refer to burdensome workload,

but raises concerns which may, of themselves, increase

the burden of the federal courts. Diversity of Citizenship

Jurisdiction/Magistrates Reform, Hearings Before the

Subcommittee on Courts, Civil Liberties and the Ad-

ministration of Justice of the Committee on the Ju-

diciary, House of Representatives, 95th Cong., Ist Ses-

sion, Serial No. 21.

Congressional statistics reinforce the Court of Ap-

peals conclusion that few cases, if any, will be

added to the federal rolls by the Benjamins ruling.

In the year commencing July 1, 1976 and ending

June 30, 1977, a total of 605 cases involved any

sort of personal injury in airplanes out of a total

of 31,678 diversity cases—less than 2%. Hearings,

supra, p. 361. Even if all Warsaw Convention cases

eS

were to become federal question cases, the number

would be de minimis.* On the other hand, with Multi-

District Litigation Procedures, Benjamins probably will

add nothing at all to the federal case load.

CONCLUSION.

Because the Court of Appeals, Second Circuit, has

ruled correctly in Benjamins v. BEA, 572 F.2d 913

(1978), and because Benjamins reconciles intra-circuit

conflict, brings American opinion into accord with inter-

national aviation law and establishes a likelihood of

rapid resolution of any potential inter-circuit conflict,

respondent respectfully submits that the Supreme Court

should deny the petition for a writ of certiorari.

Dated: August 24, 1978.

RONALD L. M. GOLDMAN & ASSOCIATES,

Counsel for Respondent.

*The Committee’s Statistics do not differentiate between War-

saw Convention Cases and the many other different types

of aviation accident cases. For example: Domestic airline cases,

general aviation cases, aviation accidents wherein allegations

of Federal Air Traffic Control negligence are asserted, etc.

—————— OCC Oe eee

APPENDIX.

United States District Court, Eastern District of New

York.

Abraham Benjamins, as Personal Representative of

the Estate of Hilde Benjamins, deceased, Plaintiffs,

against British European Airways, Hawker Siddeley

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

Defendants. 73 C 341, MDL No. 147, 74 C 590.

Filed Mar. 4, 1977.

United States Courthouse, Brooklyn, New York, Feb-

ruary 23, 1977 10:00 o’clock A.M.

Before: HONORABLE JACK B. WEINSTEIN,

U.S.D.J.

Emmanuel Karr, Official Court Reporter

(Following discussion between the parties, Judge

Weinstein made the following statement. )

THE COURT: Plaintiff contends that the Warsaw

Treaty establishes an independent right of action or

2 claim for relief for purposes of 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 Corpo-

ration, 329 F 2nd 202, First Circuit 1964.

—

This Court believes it is bound by the dicta in Noel

versus Linea Aeropostal Venezolona 247 F. 2nd 677,

Second Circuit, 1957.

See also Husser! versus Swiss Air Transport Co.,

Ltd., 351 Supp. 702, 706, a Southern District of New

York 1972 case, affirnied without opinion essentially

for the reasons set forth by Judge Tyler in a well-

considered opinion, Greca Husserl versus Swiss Air

Transport Co., 485 F. 2nd, 1240, a Second Circuit

1973 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 con-

sideration and analysis in any of the Second Circuit

decisions.

The case of Abraham Benjamins, as Personal Repre-

sentative of the Estate of Hilda Benjamins, Deceased,

is dismissed.

Take it up and see what you can do with it.

MR. GOLDMAN: Is that against al) parties?

THE COURT: Yes, against all the parties.

I’m not going to bother writing on it because I don’t

think it is necessary.

(Discussion was then held off the record. )

THE COURT: The motion of plaintiff Benjamins

to amend the complaint to allege a baggage claim

is also dismissed. The amount claimed is $1,000, this

is less than the $10,000 required, since the Court

finds that the pendent jurisdiction claims may not be

aggregated for the purpose of providing a Federal

issue basis for jurisdiction.

—3-a—

MR. GOLDMAN: I believe what you said was

that the motion for the claim was dismissed, but what

I'm asking for is a ruling granting our motion to

file the amended complaint.

THE COURT: That is granted.

MR. GOLDMAN: Then there is the Order of Dis-

missal on the jurisdictional ground?

THE COURT: Yes.

MR. GOLDMAN: All right.

MR. FINNERTY: Your Honor, on behalf of the

defendants and in regard to the second motion to

serve a second amended complaint filed by the plaintiff

Benjamins, it is our position that such a course of

action would be barred under the statute of limitations

and that the relationship-back theory mentioned by

plaintiff is not applicable to that type of cause of action,

so that therefore in addition to any other arguments

I have raised before your Honor today and decided

by your Honor, we also claim that that cause of action

would be barred under the statute of limitation.

THE COURT: The Court does not rule on that

issue it is not necessary to make that ruling.

If the case is remanded on the grounds that the

intcanralinitaia is jurisdiction, then the Court will have to

consider the issue of fairness, notice and the like,

and in deciding whether there should be a relationship

back, information sufficient to make such a ruling

is not before the Court and may have to be established

by further discovery.

All right, gentlemen.

(There was further discussion off the record. )

—4-a—

THE COURT: With respect to the testimony before

the British hearing, I ma not going to take the testimony

before the British hearing, either of live witnesses or

deposed witnesses, whichever is preferable, yet the testi-

mony at the British hearing can be used for impeach-

ment purposes, but if there is a witness who cannot

now be deposed, that is produced as a live witness,

I will take that testimony under 803(4) or 803(5),

upon giving appropriate notice. ,

The next question is whether the marufacturer has

the advantage of the Warsaw Convention.

MR. FINNERTY: That is withdrawn, your Honor,

as moot,

THE COURT: I don’t believe it has been.

MR. FINNERTY: Well, can we have a raling on

that?

THE COURT: The Court makes no ruling on that

issue.

Law Library, Judge Advocate General, Navy Depart-

ment.

1934

United States Aviation Reports

Tempus fugit; tempore fugit homo

Editors: Arnold W. Knauth, New York; Henry G.

Hotchkiss, New York; Emory H. Niles, Baltimore.

1934 USAvR

Baltimore: United States Aviation Reports, Inc. 1934

Accompaniments: Report of the Secretary of State,

with accompanying convention and protocol.

—5-a—

THE WHITE HOUSE,

The PRESIDENT:

The undersigned, the Secretary of State, has the

honor to lay before the President, with a view to

its transmission to the Senate to receive the advice

and consent of that body to adherence thereto on

the part of the United States, if his judgment approve

thereof, subject to the conditions mentioned in the

succeeding two paragraphs of this report, the convention

for the Unification of Certain Rules Relating to Interna-

tional Transportation by air, signed by the representa-

tives of 23 countries at Warsaw, Poland, on October

12, 1929, during the Second International Conference

on Private Aerial Law, and an additional protocol

to the convention relating to article 2 thereof.

It is provided in article 1 of the Convention that

the Convention shall apply to international transporta-

tion of persons, baggage, or goods performed by aircraft

for hire or to gratuitous transportation performed by

an air-transportation enterprise. It is provided further

in the first paragraph of article 2 that the Convention

shall apply to transportation performed by the State

or by legal entities constituted under public law pro-

vided the transportation falls within the conditions laid

down in article 1. However, it is provided in the

additional protocol to the Convention that the High

Contracting Parties reserve to themselves the right to

declare at the time of ratification or of adherence

that the first paragraph of article 2 of the Convention

shall not apply to international transportation by air

performed directly by the State, its colonies, protec-

torates, or mandated territories or by any other territory

under its sovereignty, suzerainty, or authority. It is

—6-a—

recommended that the Senate be asked to give its

advice and consent to adherence to the Convention

on the part of the United States subject to a declaration

to be made on behalf of the Government of the United

States in its instrument of adherence that the first

paragraph of article 2 of the convention shall not

apply to international transportation that may be per-

formed by the United States or any Territory or posses-

sion under its jurisdiction.

Through an inadvertence, the words “du transporteur”

(from the carrier), were used in the first paragraph

of article 15 of the French text of the Convention

at the time of its adoption and signature, where the

word “de !*xpéditeur” (from the consignor) should

have been er:ployed. The Polish Government as the

depositary of the signed Convention has taken steps

to have the interested governments agree to the substitu-

tion of the words “de l'expéditeur” for the words

“du transporteur.” It is recommended, therefore, that

should the Senate give its advice and consent to ad-

herence to the Convention on the part of the United

States it do so with the understanding that the French

text of the first paragraph of article 15 shall be amended

by the substitution therein of the words “de l'expédi-

teur” for the words “du transporteur” in the fourth

line of the paragraph, so that the words “consignor”

can be substituted for the word “carrier” where it

now appears in the English translation of the phrase

“du transporteur.”

This Convention constitutes the first of a series of

conventions on various subjects of private aerial law

which have resulted or will result from the deliberations

of the International Technical Committee of Aerial

Legal Experts, an international organization engaged

—7-a—

in the preparation of a code of private air law through

the adoption of draft conventions on which final action

is taken at general international conferences called for

the purpose of considering the drafts.

The Convention signed at Warsaw on October 12,

1929, applies only to international transportation by

air and includes provisions relating to the transportation

of persons, baggage, and merchandise.

Chapter II of the Convention contains detailed provi-

sions in regard to the form and legal effect of passenger

tickets, baggage, checks, and aerial waybills to be used

in international transportation by air. It is obviously

an advantage to passengers, shippers, and aerial carriers

to have international uniformity with respect to trans-

portation documents required in international air trans-

portation.

Chapter III contains important provisions in regard

to the liability of aerial carriers for damages sustained

in the event of the injury or death of passengers

or of the destruction or loss of or damage to baggage

or merchandise.

According to article 22 (ch. II) of the convention,

the lability of the aerial carrier for damages is limited

to the following amounts: 125,000 gold francs for

each passenger; 250 gold francs per kilogram for

checked baggage and goods, unless there is a special

declaration of value made by the consignor and an

additional sum paid by him if the case so requires;

and 5,000 gold francs for objects taken care ot by

the passenger hiwself. It is provided in article 22

that a higher limitation of liability with respect to

the transportation of passengers than that stipulated

——§-3-——

in the Convention may be agreed to between the carrier

and the passenger.

It is provided in article 25 (ch. III) that the carrier

shall not be entitled to avail himself of the provisions

of the Convention which exclude or limit his liability

if the damage is caused by his willful misconduct.

It is believed that the principle of limitation of

liability will not only be beneficial to passengers and

shippers as affording a more definite basis of recovery

and as tending to lessen litigation, but that it will

prove to be an aid in the development of international

air transportation, as such limitation will afford the

carrier a more definite and equitable basis on which

to obtain insurance rates, with the probable result

that there would eventually be a reduction of operating

expenses for the carrier and advantages to travelers

and shippers in the way of reduced transportation

charges.

It is provided in article 20 (ch. III) of the Conven-

tion that in the transportation of goods and baggage

the carrier shall not be liable if he proves that the

damage was occasioned by an error in piloting, in

the handling of the aircraft, or in navigation and that,

in all other respects, he and his agents have taken

all necessary measures to avoid the damage. This provi-

sion is analogous to the rule of maritime law under

which the owner of a vessel who exercises due diligence

to make the vessel seaworthy and to have it properly

manned, equipped, and supplied is not liable for damage

resulting from faults or errors in navigation or in

the management of the vessel. In view of the difficulties

of international air transportation which involves navi-

gation under uncertain atmospheric conditions over land

i ee

ee

—— 9g

and sea it is believed to be reasonable to apply this

principle of maritime law to the navigation of aircraft.

Article 23 (ch. III) of the Convention provides

in effect that any stipulation in a contract of carriage

tending to relieve the carrier of liability or to fix

a lower limit than that iaid down in the Convention

shall be void.

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 occasion-

ing injury or death of a passenger subject to certain

defenses allowed under the Convention to the aerial

carrier, The burden is upon the carrier to show that

the injury or death has not been the result of negligence

on the part of the carrier or his agents. It is understood

that while this rule has been adopted in some juris-

dictions in this country in aircraft accident cases upon

the theory of res ipsa loquitur, in certain other juris-

dictions in this country the old common-law rule has

been applied in accident cases arising in air transporta-

tion, so that the passenger or his legal representative

has had the burden of proving negligence in the opera-

tion of the aircraft, before the carrier could be held

liable for damages. The principle of placing the burden

on the carrier to show lack of negligence in international

air transportation in order to escape liability, seems

to be reasonable in view of the difficulty which a

passenger has in establishing the cause of an accident

in air transportation.

Under article 19 (ch. III) the aerial carrier is liable

for damages occasioned by delay in the transportation

by air of passengers, baggage, or goods, subject to

certain defenses established by the Convention. In this

—10-a—

respect the Convention appears to accord to passengers

and shippers broader rights than they are generally

entitled to with regard to other forms of transportation.

It will be observed that while under the terms of

the Convention passengers and shippers require certain

definite rights in international air transportation, the

aerial carriers obtain the benefit of a limitation of

liability.

The framers of the Warsaw Convention were, of

course, confronted with the necessity of taking into

consideration the various legal systems and practices

in different countries, and in the interest of obtaining

uniformity with respect to international air regulations

compromises were undoubtedly necessary. On the

whole, it is believed that the Convention adopted should

be regarded as acceptable as a basis for régulating

international transportation of passengers, baggage, and

goods, and that any apparent departures from accepted

procedure in this country are not sufficiently serious

to warrant a withholding of adherence to the Conven-

tion.

This Convention has been studied by the Department

of Commerce, which advises adherence thereto by the

Government of the United States. That Department

has expressed the view that the provisions of the Con-

vention are fair and afford protection to the air-trans-

port operator as well as to passengers and shippers,

and that if the United States fails to become a party

to the Convention American air-transport lines operat-

ing on an international basis will be at a disadvantage

while operating in countries that are parties to the

Convention.

—1l-a—

The National Advisory Committee for Aeronautics

also had this Convention under consideration and

passed a resolution favoring adherence thereto on behalf

of the Government of the United States.

I may add that in a communication received from

the Aeronautical Chamber of Commerce of America,

Inc., New York City, it was stated that after a thorough

study of the provisions of the Convention the chamber

was of the opinion that the Government of the United

States should adhere to the Convention, thus alleviating

the chaotic conditions which now confront American

international air-transport operators and the public with

respect to matters coming within the purview of the

Convention.

The Convention has been ratified by and is therefore

in force as to Spain, Brazil, Rumania, Yugoslavia,

Poland, France, Latvia, Great Britain, Italy, the Nether-

lands, and Germany.’ Mexico, a nonsignatory power,

is a party to the Convention by adherence. It will thus

be seen that the Convention is already applicable to

a large percentage of air transportation conducted on

an international basis. ,

Respectfully submitted,

CORDELL HULL.

Accompaniments: Convention and protocol as above.

DEPARTMENT OF STATE,

Washington, March 31, 1934.

1Switzerland and Liechtenstein have since ratified the treaty.