Petition for Writ of Certiorari — King ex rel. King v. Eastern Airlines, Inc.
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90-1554
OFFICE OF THE CLERK |
No. 90-
in the
Supreme Court
of the
United States
OCTOBER TERM 1990
KEVIN KING, as father and next friend of
BEN KING, a minor, and KEVIN KING and
MARY JO KING, individually,
Petitioners,
US.
EASTERN AIRLINES, INC., a Delaware corporation,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF FLORIDA
— —__—_
DEAN C. COLSON, Esq. MARC COOPER, Esq.
SHARON L. WOLFE, Esq.
Counsel of Record
COLSON, HICKS, EIDSON, COOPER, WOLFE
\ COLSON & MATTHEWS, P.A. & BOLOTIN, P.A.
4700 S.E. Financial Center 700 Courthouse Tower
200 S. Biscayne Boulevard 44 West Flagler Street
Miami, Florida 33131 Miami, Florida 33130
Telephone: (305) 373-5400 Telephone: (305) 371-1597
Counsel for Petitioners
QUESTIONS PRESENTED
WHETHER “WILLFUL MISCONDUCT” UNDER THE
WARSAW CONVENTION CAN PROPERLY BE GOV-
ERNED BY A STATE LAW STANDARD WHICH RE-
QUIRES CONDUCT “SO OUTRAGEOUS IN CHARAC-
TER, AND SO EXTREME IN DEGREE, AS TO GO
BEYOND ALL POSSIBLE BOUNDS OF DECENCY AND
BE REGARDED AS ATROCIOUS, AND UTTERLY IN-
TOLERABLE IN A CIVILIZED COMMUNITY”?
PARTIES TO PROCEEDING
The only persons and entities who have an interest in
the outcome of this case are Petitioners and Respondent.
il
TABLE OF CONTENTS
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Table of Authorities .............. cibiietioncevens
Citation of Reported Opinions .......................
Statement of Grounds for Invoking Jurisdiction .....
Nees ccc nckbeaWascdeeeesee
Statement of the Case ............ chehanbedakess
A. Presentation of federal question below........
B. Facts and procedural history ..................
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THIS COURT SHOULD RESOLVE THE
CONFLICTS BETWEEN THE RULINGS
OF THE FLORIDA COURTS AND THE
RULINGS OF VARIOUS UNITED STATES
COURTS OF APPEAL CONCERNING THE
MEANING OF THE PHRASE “WILLFUL
MISCONDUCT” AS USED IN THE WAR.-
SAW CONVENTION, AN ISSUE OF TREA-
TY INTERPRETATION ON WHICH THIS
COURT HAS NOT SPOKEN PREVIOUSLY.
i ceecncces
EA yee eT
ill
of, WO WH WHO WH WW
TABLE OF AUTHORITIES
Cases Page
Air France v. Saks,
I oc cn cncuncecsatecuceceses 10
Am. Airlines v. Ulen,
186 F.2d 529 (D.C. Cir. 1949)................ 10, 15
Belknap, Inc. v. Hale,
a ae he cc eeeccan eens 2
Berner v. British Commonwealth Pac.
Airlines, Ltd.,
346 F.2d 532 (2d Cir. 1964).................. 10
Boehringer-Mannheim Diagnostics v.
Pan Am. World Airways, Inc.,
737 F.2d 466 (Gth Cir. 1964) .............008: 16
Butler v. AeroMexico, 8, 10, 11,
774 F.2d 429 (lith Cir. 1985)................ 14, 15, 16
Chan v. Korean Air Lines, Ltd.,
ee a ccc neceeescaceccetea 2,9
Cohen v. Beneficial Indus. Loan Corp.,
cnn cueewesadenseses ens 2
Cox Broadcasting Corp. v. Cohn
re oc cn caceudnca nice 2
Eastern Airlines, Inc. v. King,
560 So.2d 1220 (Fla. 3d DCA 1990),
rev. denied, No. 76,434
CC Es DE inch ckawaceeccanenecesaane 2
iv
TABLE OF AUTHORITIES—(Continued)
Cases (cont'd) Page
Eastern Airlines, Inc. v. King,
ee Re Ce PE, ED vk ccccencccccccnccss passim
Floyd v. Eastern Airlines, Inc.,
No. 89-1598 (oral argument Oct. 29, 1990)... 7
Floyd v. Eastern Airlines, Inc.,
872 F.2d 1462 (11th Cir. 1989)............... 13, 16, 17
Gillespie v. United States Steel Corp.,
ee SR nau achbncskecrncctccaces 2
Grey v. Am. Airlines,
Bx § F fo 3. ee 10
In re Korean Air Lines Disaster,
704 F.Supp. 1135 (D.D.C. 1988) ............. 15
Koninklijke Luchtvaart Maatschappij N.V. v.
Tuller,
292 F.2d 775 (D.C. Cir. 1961)................ 10, 14, 15
LeRoy v. Sabena Belgian World Airways,
344 F.2d 266 (2d Cir. 1965) .................. 15
Pekelis v. Transcontinental & W. Air, Inc.,
if? | | 1 & pee 10, 15
Other Authorities
BP NG EF cab witncadanndukabsuaxounekauiesee 2
Convention for the Unification of Certain Rules
Relating to International Transportation by
Air, Oct. 12, 1929, 49 Stat. 3000, T.S.
No. 876 (1934), reprinted 49 U.S.C.A.App.
EE scakkaksudahaunsideseanuuadsaenunnne 3
Restatement (Second) of Torts § 46 (1965) ...... 11
No. 90-
in the
Supreme Court
of the
United States
OCTOBER TERM 1990
KEVIN KING, as father and next friend of
BEN KING, a minor, and KEVIN KING and
MARY JO KING, individually,
Petitioners,
US.
EASTERN AIRLINES, INC., a Delaware corporation,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF FLORIDA
Petitioners, Kevin King, as father and next friend of
Ben King, a minor, and Kevin King and Mary Jo King,
individually, petition for a writ of certiorari to review the
judgment and decision of the Supreme Court of Florida in
this case which denied review of the judgment and decision
of the Third District Court of Appeal of Florida.
ie em a
CITATION OF REPORTED OPINIONS
The Third District Court of Appeal of Florida reversed
the jury verdict in favor of the Kings and limited their
recoverable damages in Eastern Airlines, Inc. v. King, 561
So.2d 1220 (Fla. 3d DCA 1990), rev. denied, No. 76,434 (Fla.
Jan. 8, 1991). That decision is reproduced in the Appendix.
The Third District summarily relied on, and thereby
incorporated, the Florida Supreme Court holding in Eastern
Airlines, Inc. v. King, 557 So.2d 574 (Fla. 1990), a case
involving another passenger in the same near-crash, which is
also reproduced in the Appendix.
STATEMENT OF GROUNDS FOR INVOKING
JURISDICTION
Jurisdiction in this Court is sought to review the
judgment of the Supreme Court of Florida entered January
8, 1991, pursuant to 28 U.S.C. § 1257. See Chan v. Korean
Air Lines, Ltd., 490 U.S. 122 (1989) (jurisdiction to resolve
conflict between circuits concerning application of Warsaw
Convention).'
‘The matter sought to be reviewed is a final judgment for purposes of
§ 1257, although the intermediate state appellate court has remanded for
a new trial on damages as to one of the parties. The Third District Court
of Appeal limited Ben King’s damages as a matter of law. Although it
remanded for further proceedings as to Ben's father, the limitation on
damages will also apply to his recovery under the state court's definition
of “willful misconduct”. See Cox Broadcasting Corp. v. Cohn, 420 US.
469, 477-78 (1975). “[T])he requirement of finality is to be given a
‘practical rather than a technical construction’.” Jd. at n.7 (quoting
Gillespie v. United States Steel Corp., 379 U.S. 148, 152-53 (1964); Cohen
v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)). See also
Belknap, Inc. v. Hale, 463 U.S. 491, 497 n.5 (1983).
TREATY INVOLVED
The following portions of the Warsaw Convention are at
issue in this case. The full text of the entire treaty is
contained in the Appendix.
(1) The carrier shall not be entitled to avail
himself of the provisions of this convention which
exclude or limit his liability, if the damage is caused
by his wilful misconduct or by such default of his
part, as in accordance with the law of the court to
which the case is submitted.
(2) Similarly the carrier shall not be entitied to
avail himself of the said provisions, if the damage is
caused under the same circumstances by any agent
of the carrier acting within the scope of his
employment.
Article 25, Convention for the Unificat‘on of Certain Rules
Reiating to International Transportation by Air, Oct. 12,
1929, 49 Stat. 3000, T.S. No. 876 (1934), reprinted 49
U.S.C.A.App. § 1502, note, modified by Agreement Relating
to Liability Limitations of the Warsaw Convention and the
Hague Protocol, Agreement CAB 18900, approved by CAB
Order No. E-18680, May 13, 1966, 31 Fed. Reg. 7302 (1966)
{Montreal Agreement].
STATEMENT OF THE CASE AND FACTS
A. Presentation of federal question below. The
federal question presented in this case was timely raised in
the crial court, was specifically addressed by the trial judge
and was specifically addressed by the Florida appellate
court. The question is whether the Kings’ recovery is limited
by the $75,000 limitation in the Warsaw Convention or
whether they proved “willful misconduct” at trial which
would permit them to recover in excess of that limitation.
Eastern moved for a directed verdict during trial on the
issue of “willful misconduct”. In an interrogatory verdict,
the jury found “willful misconduct” on the part of Eastern’s
employees. On appeal to the Third District Court of Appeal
of Florida, the court summarily applied the decision of the
Florida Supreme Court in another case which arose out of
the same near-crash, Eastern Airlines, Inc. v. King, 557
So.2d 574 (Fla. 1990), a case which equates the federal
standard of “willful misconduct” with the wholly different
concept of intentional infliction of emotional distress under
state law.
- B. Facts and _ procedural history. Ben King’s
pregnant mother was aboard an international Eastern flight
which almost crashed. Ben was born four months
prematurely because of the trauma of the incident. He is
brain damaged and blind. The Kings sued Eastern. The
evidence at trial showed that the near-crash occurred
because Eastern’s mechanics never checked to see if an o-
ring, a part which they knew was a critical safety component,
was present when they installed a chip detector on each of
the plane’s three engines. All the mechanics had to do was
look at the chip detector before they installed it. They did
not do so. The mechanics then falsified their work cards to
show that they had performed the various safety checks
which they knew they had not performed.
The mechanics admitted that they intentionally
violated safety rules and regulations, even though they knew
that the o-rings were critical safety components. (T. 202-74,
426-43, 1456-82; R. 769-896, 975-1032). For example, one of
the mechanics testified that it was his habit never to look at
the chip detector to see if the o-rings were there. (T. 235).
Yet he signed the work card, knowingly violated company
safety procedures and lied about whether he had checked
the part. (T. 237-38, 239-40). The other mechanic admitted
that both of them knew they had almost killed this plane full
of people because of their conduct. (T. 1467-68).
Eastern’s mechanics admitted that they knowingly
engaged in misconduct which caused the near-crash:
Q: Did you feel for the seals on that replacement
part?
A: No, I didn’t.
Q: Did you look to see whether or not it had seais
on it?
A: I don’t believe I did.
Q: Was it your responsibility to look at it to see
whether or not it had seals on it?
A: Yes, sir.
Q: Did you know at that time that that was your
responsibility, to look at it and see that it had
seals on it?
A: Yes, sir.
Q: Were you awnre at that time that if it did not
have seals on it, that the engine could stop in
flight because of the loss of oil?
A: Yes, sir.
(R. 1004-05) (emphasis added). The mechanics also admitted
they knew that the likely consequences of their misconduct
were catastrophic:
A:
You broke the rule that requires you to look at
the seal, before you put the chip detector in,
and by doing that, you are disregarding the
consequences of what will happen to the
airplane if it did not have a seal ou it?
Yes, sir.
(T. 1472).
Q.
A.
(T. 1467-68). See also (T. 270) (mechanics knew that “the
safety of-every person on the plane depended on [them]
And you knew it was absolutely critical to the
safety of the passengers that the seals are
installed when you put the new chip detector
in?
Yes, sir.
And the fact is that was confirmed, the critical
nature of this, by the fact that what you and
Mr. Burris did almost killed everybody on this
airplane? Is that correct?
I believe so, yes.
doing this job correctly”).
Based on these admissions the trial court announced it
would direct a verdict in favor of the Kings on the issue of
willful misconduct under the Warsaw Convention if the jury
did not find in their favor. The court instructed the jury to
find willful misconduct if the mechanics
intentionally violated safety rules and regulations
with knowledge that the violation would probably
result in injury or damage, or intentionally violated
safety rules and regulations with reckless disregard
of the consequences.
(T. 1669).? The jury found for the Kings. But it awarded less
than Kevin King’s uncontested economic losses. The trial
court found the damage award inadequate and ordered a
new trial on damages. Eastern appealed.
While that appeal was pending, the Florida Supreme
Court decided another case which involved an unrelated
passenger, also named King, on the same flight. Eastern
Airlines, Inc. v. King, 557 So.2d 574 (Fla. 1990) [hereinafter
“Charles King’’}.* That case ruled on the sufficiency of the
complaint as to various issues. The primary issue was
whether the complaint stated a cause of action for
intentional infliction of emotional distress under state law.
The Florida Supreme Court determined that such a cause of
action existed under state law only if “the conduct has been
so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency . . . ”. 557 So.2d at
576. It held that the case before it did not state such a claim.
The Florida Supreme Court then held that its determination
under state law compelled the conclusion that the complaint
also was insufficient to establish willful misconduct under
the Warsaw Convention.
*Eastern’s requested jury instruction was quite similar: “the violation
{of safety rules] would constitute wilful misconduct if it was done
intentionally and with a wanton and reckless disregard of the probable
consequences”. (SR).
*This Court has granted certiorari and heard oral argument in a third
case arising out of the same near-crash. Floyd v. Eastern Airlines, Inc.,
No. 89-1598 (oral argument Oct. 29, 1990).
We have already determined that King’s allegations
are not sufficient to support a claim for recklessness
or intentional conduct [under state law]. It follows
that we must further hold that he has no basis to
assert a claim alleging “willful misconduct”.
557 So.2d at 578.
The Kings’ trial contained substantial evidence that
Eastern’s mechanics were guilty of “willful misconduct’, i.e.,
they intentionally failed “to discharge some duty necessary
to safety”. Butler v. AeroMexico, 774 F.2d 429, 430 (11th
Cir. 1985). As previously set out, the mechanics failed to
perform redundant safety checks which they knew were
critical to the safety of passengers on the plane, and then
falsified their work cards to show that they had performed
the safety checks they knew they had not performed. They
did not do this just once. They did it repeatedly for each
safety check on each of three engines.
Despite this evidence, the Third District Court of
Appeal concluded that Eastern was entitled to a directed
verdict on the issue of willful misconduct. It held that the
Florida Supreme Court’s Charles King decision, a decision
which applied a state law standard on the issue of
intentional infliction of emotional distress to the federal
question of “willful misconduct”, was controlling.
[BJased on the controlling and indistinguishable
authority of Eastern Airlines, Inc. v. King, 557
So.2d 574 (Fla. 1990), involving precisely the same
near cresh of the same Eastern Airline plane as
involved in the instant case, it is plain that the
defendant Eastern was entitled, as urged, to a
directed verdict at trial on Ben King’s claim for
willful misconduct and to a limitation of damages
on his negligence claim to $75,000 under the
Warsaw Convention.
561 So.2d at 1220-21.
The Florida Supreme Court, by a vote of four to three,
denied review of this decision. The Kings now seek review in
this Court.
ARGUMENT
THIS COURT SHOULD RESOLVE THE
CONFLICT BETWEEN THE RULINGS OF THE
FLORIDA COURTS AND THE RULINGS OF
VARIOUS UNITED STATES COURTS OF
APPEAL CONCERNING THE MEANING OF
THE PHRASE “WILLFUL MISCONDUCT” AS
USED IN THE WARSAW CONVENTION, AN
ISSUE OF TREATY INTERPRETATION ON
WHICH THIS COURT HAS NOT SPOKEN
PREVIOUSLY.
The Warsaw Convention limits a passenger’s recovery
for damages sustained on an international flight to $75,000
unless the airline or its employees were guilty of “willful
misconduct”. “Willful misconduct”, as used in the
Convention, is a term of art on which there is substantial
federal authority. However, for the first time, a state court
has applied a state law standard for intentional infliction of
emotional distress to the completely different federal issue
of “willful misconduct” under the Convention, resulting in a
standard which conflicts with that federal authority. This
Court should consider this case because a state court of last
resort has resolved a question of treaty interpretation in a
manner which conflicts with the decisions of United States
Courts of Appeals. See Chan v. Korean Air Lines, Ltd., 490
U.S. 122 (1989) (court took jurisdiction to resolve conflict
between circuits concerning application of Warsaw
Convention); Air France v. Saks, 470 U.S. 392 (1985) (court
took jurisdiction to resolve conflict among courts of appeal
concerning the meaning of the word “accident” as used in
the Warsaw Convention).
In the federal courts, “willful misconduct” under the
Warsaw Convention is well-defined. It means “a deliberate
purpose not to discharge some duty necessary to safety”.
Butler v. Aeromexico, 774 F.2d 429, 430 (11th Cir. 1985);
Koninklijke Luchtvaart Maatschappij N.V. v. Tuller, 292
F.2d 775, 778 (D.C. Cir. 1961); Am. Airlines v. Ulen, 186 F.2d
529, 533 (D.C. Cir. 1949). It includes the intentional
performance or omission of some act with a reckless
disregard for its consequences. Berner v. British
Commonwealth Pac. Airlines, Ltd., 346 F.2d 532, 536-37 (2d
Cir. 1964); Tuller, supra, 292 F.2d at 778; Pekelis uv.
Transcontinental & W. Air, Inc., 187 F.2d 122, 124 (2d Cir.
1950).
[I]f the violation [of safety rules] was intentional
with knowledge that the violation was likely to
cause injury to a passenger, then that would be
wilful misconduct, and likewise, if it was done with
a wanton and (reckless disregard of the
consequences.
Ulen, supra, 186 F.2d at 533. See also Grey v. Am. Airlines,
227 F.2d 282, 285 (2d Cir. 1955) (willful misconduct is
“intentional omission of a manifest duty” with knowledge
that omission likely to cause injury or with reckless
disregard of consequences).
The decision of the intermediate Florida appellate court
here, which adopts the Florida Supreme Court’s holding in
the Charles King case, directly conflicts with the federal
definitions and applications of the term “willful
i0
misconduct”. The Florida Supreme Court in the Charles
King case initially determined whether the allegations of the
complaint stated a cause of action for intentional infliction
of emotional distress under state law. In holding that the
complaint was insufficient, the court applied Restatement
(Second) of Torts § 46 (1965) and the comments to it. In
particular, the court relied on comment d:
It has not been enough that the defendant has
acted with an intent which is tortious or even
criminal, or that he has intended to _ inflict
emotional distress, or even that his conduct has
been characterized by “malice,” or a degree of
aggravation which would entitle the plaintiff to
punitive damages for another tort. Liability has
been found only where the conduct has been so
outrageous in character, and so extreme in degree,
as to go beyond all possible bounds of decency, and
to be regarded as atrocious, and utterly intolerable
in a civilized community. Generally, the case is one
in which the recitation of the facts to an average
member of the community would arouse his
resentment against the actor, and lead him to
exclaim, “Outrageous”’.
557 So.2d at 576. The court concluded:
Applying these principles to the present case, it is
clear that King has failed to state a claim for
reckless or intentional infliction of emotional
dist-ess. The allegations that Eastern failed to
properly inspect, maintain, and operate its aircraft
rise no higher than negligence.
1]
Id.‘
The court then addressed Charles King’s claim for
damages in excess of $75,000 under the Warsaw Convention
because of “willful misconduct”. Here, the Florida Supreme
Court confused the standards of “willful misconduct” under
the Convention with the standards governing the claim for
intentional infliction of emotional distress and the standards
governing a claim for punitive damages under Florida law.
We have already determined that King’s allegations
are not sufficient to support a claim for reckless or
intentional conduct. Jt follows that we must
further hold that he has no basis to assert a claim
alleging “wilful misconduct.” We reach this
conclusion whether we apply the federal
interpretation of “wilful misconduct,” Butler v.
Aeromexico, 774 F.2d 429 (11th Cir.1985), or the
Florida standard for the recovery of punitive
damages. White Construction Co. v. DuPont, 455
So.2d 1026 (Fia.1984).
557 So.2d at 578 (emphasis added).
This holding was the basis for the Third District Court
of Appeal’s conclusion here that the Kings had not proven
willful misconduct. And this is the holding which conflicts
with the holdings of the federal courts.
‘The Florida Supreme Court recognized that this standard would
require proof that Eastern would “recklessly or intentionally place its
_ passengers, crews, and multimillion dollar airplanes in such peril” of
crashing. 557 So.2d at 576. It noted that such a conclusion would be
“incongruous”. Id. Contrary to all federal cases on the issue, this
reasoning would preclude a finding of willful misconduct in any major
airplane crash because no airline would “recklessly or intentionally” place
its planes in peril.
12
First, the state court rulings conflict with Floyd v.
Eastern Airlines, Inc., 872 F.2d 1462 (11th Cir. 1989),5
another case which arose out of the same near-crash. The
Eleventh Circuit in that case addressed the same complaint
as that addressed in Charles King. It did not reach the same
conclusion.
While it is clear that Article 25 does not provide an
independent basis for holding Eastern liable for
punitive damages, it is possible that the facts
alleged here constitute willful misconduct and
serve to remove the liability limitations on
compensatory damages of Article 22 and the
Montreal Agreement.
This question must first be addressed by the trial
court on remand. Willful misconduct is a question
of fact and should be addressed in the first instance
by the district court. Butler v. Aeromexico, 774
F.2d 429, 432 (11th Cir.1985); Abramson v. Japan
Airlines Co., Ltd., 739 F.2d 130, 135 (3d Cir.1984),
cert. denied, 470 U.S. 1059, 105 S.Ct. 1776, 84
L.Ed.2d 835 (1985). Determining whether willful
misconduct occurred in a given case is an extremely
fact-sensitive inquiry. The plaintiff has the burden
of proving willful misconduct by the air carrier.
[numerous citations omitted].
872 F.2d at 1489 (emphasis added).
Both Charles King and Floyd relied on the Eleventh
Circuit’s decision in Butler, supra. But only Floyd contains
an accurate application of that decision. The Butler court
‘Floyd is before this Court. See n.3, supra. The issue under
consideration is whether the Warsaw Convention provides recovery for
purely emotional injuries unaccompanied by physical injury. Here, Ben
King has sustained physical injury.
13
held that “willful misconduct” means “the intentional
performance of an act with knowledge that the. . . act will
probably result in injury or damage” or “reckless disregard
of the consequences” or “a deliberate purpose not to
discharge some duty necessary to safety”. 774 F.2d at 430
(quoting Koninklijke Luchtvaart Maatschappij N.V. v.
Tuller, 292 F.2d 775, 778-79 (D.C. Cir. 1961)). These
definitions are obviously far different from the standards set
out in Charles King as the governing state law on
intentional infliction of emotional distress. Yet the Florida
Supreme Court stated in Charles King that the two
standards were the same. That conclusion is a substantial
deviation from the governing federal law and cannot be left
unrectified.
Application of the federal standard for willful
misconduct under the Warsaw Convention, rather than the
conflicting state court standard for intentional infliction of
mental distress, would lead to a conclusion different than
that reached by the Florida courts in this case. In Butler, the
Eleventh Circuit concluded that there were sufficient facts in
the record from which the district court properly inferred
that the crew of the plane had “intentionally performed acts
with knowledge that under the circumstances injury might
result”.
Thus it is an inference sustained by substantial
evidence that after the flight c-ew lost visibility and
still had control, and could have aborted the
approach, they deliberately continued their
descent, with knowledge that such procedure
would probably result in injury to passengers.
774 F.2d at 431 (emphasis added). This was sufficient to
constitute “willful misconduct” under the Warsaw
Convention.
14
The nature of the trial evidence here was no different.
The mechanics violated every step of the required, critical
safety procedure. They deliberately sabotaged the
safeguards incorporated in that procedure by signiag forms
which stated that they had performed acts and run safety
tests which they knew they had not done. The mechanics
admitted they knew that their deliberate violation of the
safety procedure was critical to the lives and safety of the
passengers.
Butler is not alone. Federal appellate decisions which
interpret the phrase “willful misconduct” have found
sufficient evidence on facts far less egregious than those
presented here. E.g., Tuller, supra, 292 F.2d at 775 (failure
to instruct passengers as to location and use of life vests
constituted willful misconduct although regulations did not
require such instructions; willful misconduct “covers not
only acts accomplished with deliberation, but also acts of
carelessness without regard to the consequences’’); Pekelis,
supra, 187 F.2d at 124 (mechanic’s failure to perform
necessary safety check which would have determined that
altimeter was faulty created jury issue on willful
misconduct); LeRoy v. Sabena Belgian World Airways, 344
F.2d 266 (2d Cir. 1965) (crew reported plane’s position to
controller even though uncertain as to position to avoid
delay which would have resulted if they had told the truth);
Ulen, supra, 186 F.2d at 529 (violation of regulation which
required planes to maintain altitude of at least 1,000 feet
above highest obstacle within five miles of course sufficient
to establish willful misconduct); Jn re Korean Air Lines
Disaster, 704 F.Supp. 1135, 1147 (D.D.C. 1988) (violation of
requirement that crew report problem with navigation
equipment constituted “deliberate purpose not to discharge
some duty necessary to safety’’).
The meaning of “willful misconduct” must be judged by
federal law under a uniform standard. It is not judged by any
state law standard. See Butler v. Aeromexico, supra, 774
F.2d at 430. The federal courts have consistently set out the
same standard and have consistently applied that standard.
However, the Florida courts have now restated that standard
in terms which suit Florida’s own policies of recovery for
state law claims such as intentional infliction of emotional
distress or punitive damages.
The state law standard on intentional infliction of
emotional distress requires conduct “so outrageous in
character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized community”. Charles
King, supra, 557 So.2d at 576. But the federal standard of
“willful misconduct” simply requires “a deliberate purpose
not to discharge some duty necessary to safety” or “the
intentional performance of an act with knowledge that the
. . act will probably result in injury or damage”. Butler,
supra, 774 F.2d at 430. The two standards cannot be
reconciled. The Florida Supreme Court was plainly incorrect
in Charles King when it found that the analysis of willful
misconduct under the Warsaw Convention “follows” from
its holding on intentional infliction of emotional distress
under state law. The state standard is not only inapplicable
to, but inconsistent with, the federal standard for Warsaw
Convention willful misconduct.
The issue is important. The Warsaw Convention is an
international treaty, accepted by the United States and
binding on the states. A primary goal of the Convention was
“to secure uniformity of liability for air carriers’.
Boehringer-Mannheim Diagnostics v. Pan Am. World
Airways, Inc., 737 F.2d 456, 459 (5th Cir. 1984). “This
uniformity interest applies not only internationally, but also
within the United States as well”. Floyd, supra, 872 F.2d at
1488; Boehringer, supra, 737 F.2d at 459. State law cannot
be used to vitiate the purpose, requirements or goals of that
16
treaty. See generally Floyd, supra, 872 F.2d at 1480-88
(Warsaw Convention preempts siate law inconsistent with
its terms or goals). Conduct sufficient to sustain a finding of
willful misconduct under the Warsaw Convention in the
federal courts or in another state’s courts must be sufficient
to sustain a finding of willful misconduct under the Warsaw
Convention in Florida. State law standards have no place in
this analysis. This Court should review this case to affirm
that the federal standard controls this significant issue.
17
CONCLUSION
For the foregoing reasons, Petitioners, Kevin King, as
father and next friend of Ben King, a minor, and Kevin King
and Mary Jo King, individually, respectfully request this
Court to grant a Writ of Certiorari to review the judgment of
the state court.
Respectfully submitted,
Dean C. Colson, Esq. Marc Cooper, Esq.
Sharon L. Wolfe, Esq.
Counsel of Record
COLSON, HICKS, EIDSON, COOPER, WOLFE
COLSON & MATTHEWS, P.A. & BOLOTIN, P.A.
4700 S.E. Financial Center 700 Courthouse Tower
200 S. Biscayne Boulevard 44 West Flagler Street
Miami, Florida 33131 Miami, Florida 33130
Telephone: (305) 373-5400 Telephone: (305) 371-1597
Counsel for Petitioners
18
Appendix
APPENDIX
EASTERN AIRLINES, INC., a Delaware corporation,
Appellant,
v.
Kevin KING, as father and next friend of Ben King, a
minor, and Kevin King, individually, and Mary Jo King,
Appellees.
No. 88-2723.
District Court of Appeal of Florida,
Third District.
April 24, 1990.
On Motion for Rehearing June 26, 1990.
Before HUBBART, BASKIN and GODERICH, JJ.
PER CURIAM.
This is an appeal by the defendant Eastern Airlines,
Inc. [Eastern] from a post-trial order granting a new trial on
damages in favor of the pla‘ntiffs in an action (a) brought by
Kevin King, as father and next friend of Ben King, a minor,
for breach of contract, negligence, and willful misconduct
[Ben King’s claim], and (b) brought by Kevin King,
individually, for past and future medical expenses for Ben
King, a minor [Kevin King’s claim]. This entire action arose
out of a near crash of an Eastern Airlines plane on a flight
from Miami to Nassau. We affirm in part and reverse in part.
First, based on the controlling and indistinguishable
authority of Eastern Airlines, Inc. v. King, 557 So.2d 574
(Fla.1990), involving precisely the same near cresh of the
App. 1
same Eastern Airline plane as involved in the instant case, it
is plain that the defendant Eastern was entitled, as urged, to
a directed verdict at trial on Ben King’s claim for willful
misconduct and to a limitation of damages on his negligence
claim to $75,000 under the Warsaw Convention.’ Eastern
concedes, however, on this appeal that Ben King’s damages
were in excess of this amount, and, accordingly, we reverse
the new trial order under review as to Ben King’s claim and
remand the cause to the trial court with directions to enter a
judgment for the plaintiff on that claim in the amount of
$75,000.
Second, as to Kevin King’s claim, however, we find no
_merit in Eastern’s appeal and affirm the new trial order
under review solely as to this claim. Contrary to Eastern’s
extensive argument, we find no merit in Eastern’s contention
that the trial court should have ordered a new trial on both
liability and damages as to the Kevin King claim; the trial
court did not err (a) in admitting certain evidence at trial, (b)
in its instructions to the jury, or (c) in granting a new trial on
damages only. In re Aircrash in Bali, Indonesia, 871 F.2d
812, 815 (9th Cir.), cert. denied, US. , 110 S.Ct.
277, 107 L.Ed.2d 258 (1989); Lawrence v. Florida East Coast
Ry., 346 So.2d 1012 (Fla.1977); Friddle v. Seaboard Coast
Line R.R., 306 So.2d 97 (Fla.1974); Cedars of Lebanon Hosp.
Corp. v. Silva, 476 So.2d 696 (Fla. 3d DCA 1985); § 90.703,
Fla.Stat. (1987). Moreover, the trial court properly denied
Eastern’s post-trial motion to disqualify the trial judge; the
motion was untimely filed, and, in any event, Eastern waived
any right to complain about this ruling when it refused to
agree to have the chief judge of the circuit hear the one
motion remaining at the time of the hearing on the motion
to disqualify. Lightbourne v. Dugger, 549 So.2d 1364,
'In fairness to the trial court, it should be noted that the King case,
which compels a reversal on Ben King’s claim, was decided subsequent to
the trial below—so that the trial court did not have the benefit of King
when ruling on Eastern’s various trial motions.
App. 2
et Oe eee eee ee oe ee
1365-66 (Fla.), cert. denied, U.S. , 110 S.Ct. 1505,
108 L.Ed.2d 640 (1989); Fischer v. Knuck, 497 So.2d 240, 243
(Fla.1986); In re Estate of Carlton, 378 So.2d 1212, 1218
(Fla.1979) (Overton, J. on denial of request for recusal), cert.
denied, 447 U.S. 922, 100 S.Ct. 3013, 65 L.Ed.2d 1114 (1980);
Ball v. Yates, 158 Fla. 521, 533, 29 So.2d 729, 735 (1946),
cert. denied, 332 U.S. 774, 68 S.Ct. 66, 92 L.Ed. 359 (1947);
see Lawson v. Longo, 547 So.2d 1279, 1280 (Fla. 3d DCA
1989); see also Sierra Club v. Simkins Indus., Inc., 847 F.2d
1109 (4th Cir.1988) (client bound by attorney’s tactical
decision to waive judge’s offer of recusal), cert. denied,
U.S. ___., 109 S.Ct. 3185, 105 L.Ed.2d 694 (1989); State
v. Hansen, 107 Wash.2d 331, 728 P.2d 593 (1986) (en banc)
(litigant waived right to disqualify judge for prejudice when
trial judge offered to let another judge hear case and
defendant rejected offer).
Affirmed in part; reversed in part.
ON MOTION FOR REHEARING
PER CURIAM.
Eastern Airlines, Inc. has filed a motion for rehearing in
which it requests this court to determine whether Kevin
King’s claim is governed by the Warsaw Convention, and, if
so, the extent of available funds under the Convention and
the proper distribution thereof between the Ben King and
Kevin King claims. This issue was neither presented in the
parties’ original or supplemental briefs nor orally argued,
and we decline to address it for the first time on rehearing.
Sag Harbour Marine, Inc. v. Fickett, 484 So.2d 1250, 1256
(Fla. Ist DCA 1985), rev. denied, 494 So.2d 1150 (Fla.1986);
Fiesta Fashions, Inc. v. Capin, 450 So.2d 1128, 1129 (Fla. 1st
DCA 1984); Sarmiento v. State, 371 So.2d 1047, 1053 (Fla.
3d DCA 1979), approved, 397 So.2d 643 (Fla.1981); Price
Wise Buying Group v. Nuzum, 343 So.2d 115, 117 (Fla. 1st
App. 3
DCA 1977). Although we decline to rule on the issue so
raised, we do so without prejudice to Eastern’s raising and
fully arguing its position in the new trial on damages below,
and we refer the trial court to the following relevant cases for
consideration in its determination of the issue: Diaz Lugo v.
American Airlines, Inc., 686 F.Supp. 373 (D.P.R.1988);
Hinds v. Philippine Airlines, Inc., [1979 Transfer Binder]
Avi.L.Rep. (CCH), 15 Avi. 17, 701 (S.D.N.Y.1979); Ross v.
Pan American Airways, 123 N.Y.S.2d 263 (Sup.Ct.1953).
We have considered the other points in Eastern’s
motion for rehearing and find them without merit. The
motion for rehearing is denied. In light of our decision on the
Warsaw Convention issue, King’s separately filed motion for
clarification is likewise denied.
App. 4
SUPREME CourRT OF FLORIDA
KEVIN KING,
Petitioner,
Vv.
EASTERN AIRLINES, INC.,
Respondent.
Tuesday, January 8, 1991
CASE NO. 76,434
District Court of Appeal,
3rd District No. 88-2723
This cause having heretofore been submitted to the
Court on jurisdictional briefs and portions of the record
deemed necessary to reflect jurisdiction under Article V,
Section 3(b), Florida Constitution (1980), and the Court
having determined that it should decline to accept
jurisdiction, it is ordered that the Petition for Review is
denied.
No Motion for Rehearing will be entertained by the
Court. See Fla. R. App. P. 9.330(d).
OVERTON, MCDONALD, GRIMES and KOGAN, Ju.,
concur
SHAW, C.J., BARKETT, J. and EHRLICH, Senior Justice,
dissent
A True Copy
TEST: (SEAL)
/s/
Sid J. White
Clerk, Supreme Court
App. 5
EASTERN AIRLINES, INC.,
Petitioner,
v.
Charles KING,
Respondent.
No. 73395.
Supreme Court of Florida.
Feb. 15, 1990.
Rehearing Denied March 28, 1990.
GRIMES, Justice.
We review King v. Eastern Airlines, Inc., 536 So.2d
1023 (Fla. 3d DCA 1987), in which the Third District Court
of Appeal partially reversed a judgment on the pleadings.
Our jurisdiction is based on conflict with Metropolitan Life
Insurance Co. v. McCarson, 467 So.2d 277 (Fla.1985), and
Brown v. Cadillac Motor Car Division, 468 So.2d, 903
(Fla.1985). Art. V, § 3(bX3), Fla. Const.
The facts as alleged in the complaint were as follows. On
May 5, 1983, the respondent, Charles King, was a passenger
on Eastern Airlines’ Flight #855 departing from Miami
International Airport, bound for Nassau, Bahamas. En route
one of the plane’s three engines failed, so the flight crew
turned the plane around to return to Miami. After turning
around, the plane’s other two engines failed. The crew and
passengers were prepared to ditch the plane as it lost
altitude. Finally, after an extended period, the crew was able
to restart one engine and land the plane at Miami
Internationa! \irport.
App. 6
King sued Eastern Airlines for, inter alia, damages
allegedly incurred as a result of Eastern’s reckless or
intentional infliction of mental distress and for damages
arising under the Warsaw Convention.' Specifically, count
III of King’s amended complaint alleged that Eastern failed
to properly inspect, maintain, and operate its aircraft and
that “Eastern’s records reveal at least one dozen prior
instances of engine failures due to missing O-rings [oil seals],
and yet Eastern failed to institute appropriate procedures to
cure this maintenance problem despite such knowledge.”
King further alleged that this constitutes an “entire want of
care” and “indifference” and implies “such wantonness,
willfulness, and malice as would justify punitive damages.”
In count IV, King claimed damages under the Warsaw
Convention by reason of this negligent or willful misconduct.
The circuit court stayed action in this lawsuit pending
the outcome of related federal actions filed by other
passengers in the United States District Court for the
Southern District of Florida. The district court entered
judgments on the pleadings in Eastern’s favor based on the
failure to state a cause of action. Jn re Eastern Airlines, Inc.
Engine Failure, Miami Int’l Airport on May 5, 1983, 629
F.Supp. 307 (S.D.Fla.1986). Persuaded by the federal district
court’s reasoning, the state circuit court then entered a
judgment on the pleadings in favor of Eastern and against
King. On appeal a panel of the Third District Court of
Appeal reversed and reinstated the claim for intentional
infliction of mental distress but affirmed the dismissal of the
claim for emotional distress under the Warsaw Convention.
King v. Eastern Airlines, Inc., 536 So.2d 1023 (Fla. 3d DCA
1987). On motion for rehearing, the court again affirmed the
dismissal of the Warsaw Convention claim but held that the
‘Convention for the Unification of Certain Rules Relating to
International Transportation by Air, concluded at Warsaw, Poland,
October 12, 1929, adhered to by the United States June 27, 1934, 49 Stat.
3000, 3014, reprinted in 49 U.S.C. note following § 1502.
App. 7
unavailability of a cause of action under the Warsaw
Convention did not preclude other forms of relief. Jd. at
1030, 1032. Thereafter, in a split vote on rehearing en banc,
the court adhered to the decision but announced different
reasons for reversing the dismissal of the state claim for
emotional distress. Jd. at 1032.
The related cases in federal court were appealed to the
Eleventh Circuit Court of Appeals. That court relied on the
Third District’s decision in King to uphold the state claim
for mental distress but noted that the issue was pending in
this Court. Floyd v. Eastern Airlines, Inc., 872 F.2d 1462,
1467 (11th Cir.1989). The Eleventh Circuit Court of Appeals
then concluded that the Warsaw Convention does allow
recovery for purely mental injuries unaccompanied by
physical trauma. Jd. at 1480. Further, the court ruled that to
the extent that the cause of action for intentional infliction
of emotional distress under Florida law conflicts with the
cause of action under the Warsaw Convention, Florida law
was preempted. Jd. at 1482.
This Court first recognized the tort of intentional
infliction of emotional distress in Metropolitan Life
Insurance Co. v. McCarson. In McCarson we approved the
adoption of section 46, Restatement (Second) of Torts
(1965), which states:
(1) One who by extreme and outrageous conduct
intentionally or recklessly causes severe emotional
distress to another is subject to liability for such
emotional distress, and if bodily harm to the other
results from it, for such bodily harm.
In that case, however, we held that the court below had not
conformed its findings to the comments to section 46 which
explain the application of the tort.
' App. 8
Comments d and i to section 46 are particularly
pertinent to our consideration:
It has not been enough that the defendant has
acted with an intent which is tortious or even
criminal, or that he has intended to _ inflict
emotional distress, or even that his conduct has
been characterized by “malice,” or a degree of
aggravation which would entitle the plaintiff to
punitive damages for another tort. Liability has
been found only where the conduct has been so
outrageous in character, and so extreme in degree,
as to go beyond all possible bounds of decency, and
to be regarded as atrocious, and utterly intolerable
in a civilized community. Generally, the case is one
in which the recitation of the facts to an average
member of the community would arouse his
resentment against the actor, and lead him to
exclaim, “Outrageous!”
i. Intention and recklessness. The rule stated in
this Section applies where the actor desires to
inflict severe emotional distress, and also where he
knows that such distress is certain, or subsiantially
certain, to result from his conduct. It applies also
where he acts reckless, as that term is defined in
§ 500, in deliberate disregard of a high degree of
probability that the emotional distress will follow.
Section 500, Restatement (Second) of Torts (1965), provides:
The actor’s conduct is in reckless disregard of the
safety of another if he does an act or intentionally
fails to do an act which it is his duty to the other to
do, knowing or having reason to know of facts which
App. 9
would lead a reasonable man to realize, not only
that his conduct creates an unreasonable risk of
physical harm to another, but also that such risk is
substantially greater than that which is necessary
to make his conduct negligent.
Comment b of section 500 further elaborates that “[clonduct
cannot be in reckless disregard of the safety of others unless
the act or omission is itself intended. . . .”
Applying these principles to the present case, it is clear
that King has failed to state a claim for reckless or
intentional irfliction of emotional distress. The allegations
that Eastern failed to properly inspect, maintain, and
operate its aircraft rise no higher than negligence. The fact
that there may have been at least one dozen prior instances
of missing O-rings causing engine failures does not reflect
“extreme and outrageous conduct intentionally or
recklessly” causing emotional distress. The balance of count
III contains only conclusions. See Price v. Morgan, 436 So.2d
1116 (Fla. 5th DCA 1983) (a pleading is insufficient if it
contains merely conclusions as opposed to ultimate facts
supporting each element of the cause of action).
As amicus points out, it is incongruous that Eastern
would recklessly or intentionally place its passengers, crews,
and multi-million dollar airplanes in such peril. Our
conclusion is reinforced by King’s allegation that, despite
Eastern’s knowledge of the prior engine failures, Eastern
failed to take “appropriate” procedures to correct the
problem. Failing to take “appropriate” action to correct the
problems would appear to negate an intentional act or an
intentional failure to act on Eastern’s part. Significantly,
King’s complaint does not allege that Eastern knew or
should have known that the procedures were inappropriate.
App. 10
The majority opinion below represents a misapplication
of the principle established in Metropolitan Life Insurance
Co. v. McCarson. Furthermore, as noted by dissenting Judge
Schwartz:
In essence, the majority view amounts to
establishing an exception to the recently reaffirmed
“{mpact rule,” Brown v. Cadillac Motor Car Div.,
468 So.2d 903 (Fla.1985), which would arise in every
case in which the defendant acts recklessly. It
would apply when, for example, a_ highly
intoxicated driver recklessly operates his vehicle
and narrowly misses but severely frightens a
plaintiff, or when a plaintiff uses and becomes
mentally concerned over some potential harm, but
is not actually “impacted” or physically injured by
a product—like a Mustang or a Dalkon Shield—
which may have been recklessly manufactured.
Whatever the law of Florida may previously have
been, see Crane v. Loftin, 70 So.2d 574 (Fla.1954)
(dictum); Kirksey v. Jernigan, 45 So.2d 188
(Fla.1950) (dictum), it is very clear that there is no
such exception under the present law of our state.
536 So.2d at 1036-37 (Schwartz, J., dissenting).
While not the basis of our jurisdiction, we deem it
appropriate to address the question of whether King has
stated a cause of action under the Warsaw Convention. The
Warsaw Convention is an international treaty to which the
United States is a party. Air France v. Saks, 470 U.S. 392,
105 S.Ct. 1338, 84 L.Ed.2d 289 (1985). The Convention
applies “to all international transportation of persons,
baggage, or goods performed by aircraft for hire.” Warsaw
Convention art. 1. The Convention creates a presumption
that the carrier is liable for damage sustained by passengers
as a result of the carrier’s conduct, shifting the burden of
App. 11
proof to the carrier to show that it took all necessary
measures, or that it was impossible to take such measures, to
avoid the damage. Warsaw Convention arts. 17, 20. The
Convention originally placed a limit of $8,300 on the
carrier’s liability. Warsaw Convention art. 22. Under the
Montreal Agreement of 1966,’ which is not a treaty of the
United States, the airlines agreed to raise the limit of
liability to $75,000 and waive the due care defenses of article
20 for flights originating, terminating, or having a stopping
point in the United States. Floyd, 872 F.2d at 1468.
Article 17 of the Convention establishes the liability of
international air carriers for injuries to passengers. The
unofficial United States translation of article 17 states:
The carrier shall be liable for damage sustained in
the event of the death or wounding of a passenger
or any other bodily injury suffered by a passenger,
if the accident which caused the damage so
sustained took place on board the aircraft or in the
course of any of the operations of embarking or
disembarking.
49 Stat. 3014, reprinted at note following 49 U.S.C. § 1502.
However, the French text of the Warsaw Convention is the
only official text and the one officially adopted and ratified
by the Senate. See Floyd, 872 F.2d at 1470. The United
States Supreme Court has held that the French legal
meaning controls “not because ‘we are forever chained to
French law’ by the Convention, but because it is our
responsibility to give the specific words of the treaty a
meaning consistent with the shared expectations of the
contracting parties.” Saks, 470 U.S. at 399, 105 S.Ct. at 1342
(citation omitted). The French text of article 17 reads:
*Agreement Relating to Liability Limitations of the Warsaw
Convention and the Hague Protocol, Agreement CAB 18900, approved by
CAB Order No. 28680, May 13, 1966, 31 Fed.Reg. 7302 (1966).
App. 12
Le transporteur est responsable du dommage
survenu en cas de mort, de blessure ou de toute
autre lésion corporelle subie par un voyageur
lorsque l’accident qui a causé le dommage s’est
produit a bord de l’aéronef au cours de toutes
opérations d’embarquement et de débarquement.
Both parties conceded at oral argument that this case
involved an “accident” occurring on board the aircraft. See
Saks, 470 U.S. at 405, 105 S.Ct. at 1345 (accident defined as
an “unexpected or unusual happening or event that is
external to the passenger’’). Therefore, the question we must
address is whether the use of the language of article 17 was
meant to encompass purely emotional distress.
The courts have sharply split on this issue. Those which
permit recovery include Floyd, 872 F.2d 1462; Karfunkel v.
Compagnie Nationale Air France, 427 F.Supp. 971
(S.D.N.Y.1977); Krystal v. British Overseas Airways Corp.,
403 F.Supp. 1322 (C.D.Cal.1975); Husserl v. Swiss Air
Transport Co., 388 F.Supp. 1238 (S.D.N.Y.1975); Palagonia
v. Trans World Airlines, Inc., 110 Misc.2d 478, 442 N.Y.
S.2d 670, 672 (Sup.Ct.1978). Other courts have determined
that article 17 does not contemplate damages for emotional
distress unaccompanied by physical trauma. Burnett v.
Trans World Airlines, Inc., 368 F.Supp. 1152 (D.N.M.1973);
Rosman v. Trans World Airlines, Inc., 34 N.Y.2d 385, 358
N.Y.S.2d 97, 314 N.E.2d 848 (1974).
After careful review and consideration, we are
persuaded by the extensive and thorough resolution of this
matter in Floyd. The Floyd court exhaustively examined the
French legal meaning of the text, the concurrent and
subsequent legislative history of the Warsaw Convention,
the conduct of the parties, and the cases interpreting article
App. 13
17.2 The court determined that French civil law permits
recovery for any damage, whether material or moral,
including mental suffering unaccompanied by physical
injury. Id. at 1472. We agree that the analysis of the cases
which preclude recovery for emotional distress is flawed
because those courts did not carefully consider the French
legal meaning of lesion corporelle or the negotiating history
of the Convention. Id. at 1476-78. In denying recovery, those
courts have erroneously imposed upon article 17 the
common law requirement that emotional injury must
accompany physical injury in order to be compensable.
Because we found that King failed to state a claim
under state law it is unnecessary for us to discuss whether a
state law claim for emotional distress would be preempted
by the Warsaw Convention. However, we wil! address his
claim for damages in excess of $75,000 under the Warsaw
Convention. Article 25 of the Convention states:
(1) The carrier shall not be liable to avail himself
of the provisions of this convention which exclude
or limit his liability, if the damage is caused by his
wilful misconduct or by such default on his part as,
in accordance with the law of the court to which the
case is submitted, is considered to be the equivalent
to wilful misconduct."!
The Eleventh Circuit determined that article 25 did not
provide a separate cause of action for punitive damages but
instead served only to lift the strict limit on liability for
compensatory damages in the case of wilful acts. Floyd, 872
F.2d at 1485.
*The French words “lesion corporelle” are literally translated as
“bodily injury.”
“We use the English translation of this article since neither party has
suggested an alternative French legal meaning. See Floyd v. Eastern
Airlines, Inc., 872 F.2d 1462, 1462 n. 34 (11th Cir.1989).
App. 14
We have already determined that King’s allegations are
not sufficient to support a claim for reckless or intentional
conduct. It follows that we must further hold that he has no
basis to assert a claim alleging “wilful misconduct.” We
reach this conclusion whether we apply the federal
interpretation of “wilful misconduct,” Butler v. Aeromexico,
774 F.2d 429 (11th Cir. 1985), or the Florida standard for the
recovery of punitive damages. White Construction Co. v.
DuPont, 455 So.2d 1026 (Fla.1984).
In conclusion, we disapprove the decision below with
respect to both the state claim for emotional distress and
that under the Warsaw Convention. We hold that King has
failed to state a claim for emotional distress under Florida
law. However, he does have a claim for emotional distress
under article 17 of the Warsaw Convention but any recovery
is limited to a maximum of $75,000. Article 25 of the
Convention does not apply because the complaint fails to
state a claim for “wilful misconduct.” We remand the case
for further proceedings in accordance with this opinion.
It is so ordered.
OVERTON, SHAW and KOGAN, JJ., concur.
EHRLICH, C.J., concurs specially with an opinion, in
which SHAW and BARKETT, JJ., concur.
BARKETT, J., concurs specially with an opinion.
McDONALD, J., concurs in part and dissents in part
with an opinion.
EHRLICH, Chief Justice, specially concurring.
App. 15
I concur in all aspects of the majority opinion except the
majority’s approval of the following language quoted from
Judge Schwartz’s dissent in the decision below
“In essence, the majority view amounts to
establishing an exception to the recently reaffirmed
‘impact rule,’ Brown v. Cadillac Motor Car Div.,
468 So.2d 903 (Fla.1985), which would arise in every
case in which the defendant acts recklessly. It
would apply when, for example, a_ highly
intoxicated driver recklessly operates his vehicle
and narrowly misses but severely frightens a
plaintiff, or when a plaintiff uses and becomes
mentally concerned over some potential harm, but
is not actually ‘impacted’ or physically injured by a
product—like a Mustang or a Dalkon Shield—
which may have been recklessly manufactured.
Whatever the law of Florida may previously have
been, see Crane v. Loftin, 70 So.2d 574 (Fla.1954)
(dictum), Kirksey v. Jernigan, 45 So.2d 188
(Fla.1950) (dictum), it is very clear that there is no
such exception under the present law of our state.”
At 576-77 (quoting 536 So.2d 1023, 1036-37 (Fla. 3d DCA
1987) (Schwartz, J., dissenting)). I write separately to point
out the confusion or misunderstanding which I fear may be
created by the quoted language. This quote should not be
taken to mean that impact or a physical manifestation of
psychological trauma is required in connection with the tort
of intentional infliction of emotional distress.
This Court has long recognized the tort of negligent
infliction of emotional distress where the distress is
accompanied by physical impact. See, e.g. Gilliam uv.
Stewart, 291 So.2d 593 (Fla.1974); Clark v. Choctawhatchee
Electric Co-Operative, 107 So.2d 609 (Fla.1958). More
recently, in Champion v. Gray, 478 So.2d 17 (Fla.1985), and
App. 16
Brown v. Cadillac Motor Car Division, 468 So.2d 903 (Fla.
1985), we modified, in some limited situations, the
requirement of an impact in connection with a claim of
negligent infliction of emotional distress. However, in those
situations where impact is unnecessary, a clearly discernible
physical impairment must accompany or occur within a
short time after the negligently inflicted psychic injury. 468
So.2d at 904; 478 So.2d at 17.
As noted by the majority, this Court first recognized the
tort of intentional infliction of emotional distress by
adopting section 46, of the Restatement (Second) of Torts
(1965), in Metropolitan Life Insurance Co. v. McCarson, 467
So.2d 277 (Fla.1985). While there must be impact or an
objectively discernible physical manifestation before a cause
of action arising from simple negligence may exist, no
requirement of impact or physical injury is contained in
section 46. In fact, comment k of that section states that the
rule
is not... limited to cases where there has been
bodily harm; and if the conduct is sufficiently
extreme and outrageous there may be liability for
the emotional distress alone, without such harm. In
such cases the courts may perhaps tend to look for
more in the way of outrage as a guarantee that the
claim is genuine; but if the enormity of the outrage
carries conviction that there has in fact been severe
emotional distress, bodily harm is not required.
Where the psychic injury is based on simple negligence,
proof of impact or objective physical manifestation affords a
guarantee that the mental distress is genuine. Whereas, the
clearly outrageous nature of the conduct necessary under
section 46 serves as adequate assurance that the resulting
mental disturbance is not ‘ictitious. See W. Keeton, Prosser
and Keeton on Torts, §§ 12 & 54 (5th ed. 1984). This
App. 17
distinction between causes of action based on negligent and
intentional infliction of emotional distress was recognized by
this Court in Brown. We noted that our holding in that case
that there is no cause of action within this state for
psychological trauma alone resulting from simple negligence
was not intended to disturb prior decisions of the district
courts allowing such damages in intentional tort actions
based on outrageous conduct. 468 So.2d at 904 n. *.*
SHAW and BARKETT, JJ., concur.
BARKETT, Justice, specially concurring.
I concur in the Court’s judgment that prior decisions
would bar relief for the intentional infliction of mental
distress in this case. I believe, however, that persons who
have suffered great mental anguish through the extreme
negligence of a tort-feasor, such as Eastern’s in this case,
should be permitted a remedy.
McDONALD, Justice, concurring in part and dissenting
in part.
I would hold that King has no cause of action against
Eastern under Florida law or under the Warsaw Convention
unless his mental anguish evolves into an objectively
discernible bodily injury similar to that described in
Champion v. Gray, 478 So.2d 17 (Fla.1985), and Brown v.
Cadillac Motor Car Division, 468 So.2d 903 (Fla.1985).
In reaching this conclusion I am much more persuaded
by Burnett v. Trans World Airlines, Inc., 368 F.Supp. 1152
(D.N.M.1973), than I am by Floyd v. Eastern Airlines, Inc.,
872 F.2d 1462 (11th Cir.1989), even though the latter
*For this reason, I do not believe that this Court’s decision in Brown
v. Cadillac Motor Car Division, 468 So.2d 903 (Fla.1985), is in conflict
with the decision under review.
App. 18
discusses the former. Burnett aptly points to the difference
between lésion corporelle and lésion mentaie. As the court
further reported in Burnett, the First International
Conference on Private Air Law had been interpreted to
allow mental distress in a myriad of circumstances. It then
noted:
[T]he Conference appointed a group of air law
experts who would report to the Second
International Conference in Warsaw in 1929. The
text they submitted became the mode for present
Article 17 and it provided in pertinent part:
“Le transporteur est responsable du
dommage survenu pendant le transport:
(a) en cas de mort, de blessure ou de
toute autre lesion corporelle subie par un
voyageur.”
By thus restricting recovery to bodily injuries,
the inference is strong that the Convention
intended to narrow the otherwise broad scope of
liability under the former draft and preclude
recovery for mental anguish alone. Had the
delegates desired otherwise, there would have been
no reason to so substantially modify the proposed
draft of the First Conference.
Concurring in this conclusion, Professor Juglart
of the Law Faculty of the University of Paris has
proffered the opinion that Article 17, as now
constituted, does not permit recovery for mental
injuries. He concludes that to so recover, the Article
would have to undergo amendment to read “lesion
corporelle ou mentale.”
App. 19
368 F.Supp. at 1157 (footnotes omitted).
It thus appears to me that some form of bodily injury
must be the result of an airlines’ wrong before there can be a
recovery. I can not, and do not, equate mental stress to a
bodily injury and do not believe it contemplated by the
Warsaw Convention.
I concur with the majority opinion in reference to the
discussion of Florida law, but dissent on the effect of the
Warsaw Convention treaty.
App. 20
WARSAW CONVENTION
Convention for Unification of Certain Rules
Relating to International Transportation by Air
The President of the German Reich, the Federal
President of the Republic of Austria, His Majesty the King
of the Belgians, the President of the United States of Brazil,
His Majesty the King of the Bulgarians, the President of the
Nationalist Government of China, His Majesty the King of
Denmark and Iceland, His Majesty the King of Egypt, His
Majesty the King of Spain, the Chief of State of the
Republic of Estonia, the President of the Republic of
Finland, the President of the French Republic, His Majesty
the King of Great Britain, Ireland, and the British
Dominions beyond the Seas, Emperor of India, the
President of the Hellenic Republic, His Most Serene
Highness the Regent of the Kingdom of Hungary, His
Majesty the King of Italy, His Majesty the Emperor of
Japan, the President of the Republic of Latvia, Her Royal
Highness the Grand Duchess of Luxemburg, the President
of the United Mexican States, His Majesty the King of
Norway, Her Majesty the Queen of the Netherlands, the
President of the Republic of Poland, His Majesty the King
of Rumania, His Majesty the King of Sweden, the Swiss
Federal Council, the President of the Czechoslovak
Republic, the Central Executive Committee of the Union of
Soviet Socialist Republics, the President of the United
States of Venezuela, His Majesty the King of Yugoslavia:
Having recognized the advantage of regulating in a
uniform manner the’ conditions of international
transportation by air in respect of the documents used for
such transportation and of the liability of the carrier.
App. 21
Have nominated to this end their respective
Plenipotentiaries, who, being thereto duly authorized, have
concluded and signed the following convention:
Chapter I. Scope—Definitions
Article I
(1) This convention shall apply to all international
transportation of persons, baggage, or goods performed by
aircraft for hire. It shall apply equally to gratuitous
transportation by aircraft performed by an_ air
transportation enterprise.
(2) For the purposes of this convention the expression
“{nternational transportation” shall mean any
transportation in which, according to the contract made by
the parties, the place of departure and the place of
destination, whether or not there be a break in the
transportation or a transshipment, are situated either within
the territories of two High Contracting Parties, or within the
territory of a single High Contracting Party, if there is an
agreed stopping piace within a territory subject to the
sovereignty, suzerainty, mandate or authority of another
power, even though that power is not a party to this
convention. Transportation without such an agreed stopping
place between territories subject to the sovereignty,
suzerainty, mandate, or authority of the same High
Contracting Party shcil not be deemed to be international
for the purposes of this convention.
(3) Transportation to be performed by several
successive air carriers shall be deemed, for the purposes of
this convention, to be one undivided transportation, if it has
been regarded by the parties as a single operation, whether it
has been agreed upon under the form of a single contract or
of a series of contracts, and it shall not lose its international
App. 22
character merely because one contract or a series of
contracts is to be performed entirely within a territory
subject to the sovereignty, suzerainty, mandate, or authority
of the same High Contracting Party.
Article 2
(1) This convention shall apply to transportation
performed by the state or by legal entities constituted under
public law provided it falls within the conditions laid down
in article 1.
(2) This convention shall not apply to transportation
performedunderthetermsofanyinternational postal
convention.
Chapter II. Transportation Documents
Section I. Passenger Ticket
Article 3
(1) For the transportation of passengers the carrier
must deliver a passenger ticket which shall contain the
following particulars:
(a) The place and date of issue;
(b) The place of departure and of destination;
(c) The agreed stopping places, provided that the
carrier may reserve the right to alter the stopping places in
case of necessity, and hat if he exercises that right, the
alteration shall not have the effect of depriving the
transportation of its international character;
(d) The name and address of the carrier or carriers;
App. 23
(e) A statement that the transportation is subject to
the rules relating to liability established by this convention.
(2) The absence, irregularity, or loss of the passenger
ticket shall not affect the existence or the validity of the
contract of transportation, which shall none the less be
subject to the rules of this convention. Nevertheless, if the
carrier accepts a passenger without a passenger ticket having
been delivered he shall not be entitled to avail himself of
those provisions of this convention which exclude or limit his
liability.
Section II. Baggage Check
Article 4
(1) For the transportation of baggage, other than small
personal objects of which the passenger takes charge himself,
the carrier must deliver a baggage check.
(2) The baggage check shal! be made out in duplicate,
one part for the passenger and the other part for the carrier.
(3) The baggage check shall contain the following
particulars:
(a) The place and date of issue;
(6) The place of departure and of destination;
(c) The name and address of the carrier or carriers;
(d) The number of the passenger ticket;
(e) A statement that delivery of the baggage will be
mad? to the bearer of the baggage check;
App. 24
(f) The number and weight of the packages;
(g) The amount of the value declared in accordance
with article 22(2);
(h) A statement that the transportation is subject to
the rules relating to liability established by this convention.
(4) The absence, irregularity, or loss of the baggage,
check shall not affect the existence or the validity of the
contract of transportation which shall none the less be
subject to the rules of this convention. Nevertheless, if the
carrier accepts baggage without a baggage check having been
delivered, or if the baggage check does not contain the
particulars set out at (d), (f), and (h) above, the carrier shall
not be entitled to avail himself of those provisions of the
convention which exclude or limit his liability.
Section III. Air Waybill
Article 5
(1) Every carrier of goods has the right to require the
consignor to make out and hand over to him a document
called an “air waybill”; every consignor has the right to
require the carrier to accept this document.
(2) The absence, irregularity, or loss of this document
shall not affect the existence or the validity of the contract of
transportation which shall, subject to the provisions of
article 9, be none the less governed by the rules of this
convention.
Article 6
(1) The air waybill shall be made out by the consignor
in three original parts and be handed over with the goods.
App. 25
(2) The first part shall be marked “for the carrier’,
and shall be signed by the consignor. The second part shall
be marked “for the consignee”; it shall be signed by the
consignor and by the carrier and shall accompany the goods.
The third part shall be signed by the carrier and handed by
him to the consignor after the goods have been accepted.
(3) The carrier shall sign on acceptance of the goods.
(4) The signature of the carrier may be stamped; that
of the consignor may be printed or stamped.
(5) If, at the request of the consignor, the carrier
makes out the air waybill, he shall be deemed, subject to
proof to the contrary, to have done so on behalf of the
consignor.
Article 7
The carrier of goods has the right to require the
consignor to make out separate waybills when there is more
than one package.
Article 8
The air waybill shall contain the following particulars:
(a) The place and date of its execution;
(b) The place of departure and of destination;
(c) The agreed stopping places, provided that the
carrier may reserve the right to alter the stopping places in
case of necessity and that if he exercises that right the
alteration shall not have the effect of depriving the
transportation of its international character;
App. 26
(d) The name and address of the consignor;
(e) The name and address of the first carrier;
(f) The name and address of the consignee, if the case
so requires;
(g) The nature of the goods;
(h) The number of packages, the method of packing,
and the particular marks or numbers upon them;
(1) The weight, the quantity, the volume, or
dimensions of the goods;
(j) The apparent condition of the goods and of the
packing;
(k) The freight, if it has been agreed upon, the date
and place of payment, and the person who is to pay it;
(1) If the goods are sent for payment on delivery, the
price of the goods, and, if the case so requires, the amount of
the expenses incurred;
(m) The amount of the value declared in accordance
with article 22(2),
(n) The number of parts of the air waybill;
(0) The documents handed to the carrier to accompany
the air waybill;
(p) The time fixed for the completion of the
transportation and a brief note of the route to be followed, if
these matters have been agreed upon;
App. 27
(q) A statement that the transportation is subject to
the rules relating to liability established by this convention.
Article 9
If the carrier accepts goods without an air waybill
having been made out, or if the air waybill does not contain
all the particulars set out in article 8(a) to (i), inclusive, and
(q), the carrier shall not be entitled to avail himself of the
provisions of this convention which exclude or limit his
liability.
Article 10
(1) The consignor shall be responsible for the
correctness of the particulars and statements relating to the
goods which he inserts in the air waybill.
(2) The consignor shall be liable for all damages
suffered by the carrier or any other person by reason of the
irregularity, incorrectness or incompleteness of the said
particulars and statements.
Article 11
(1) The air waybill shall be prima facie evidence of the
conclusion of the contract, of the receipt of the goods and of
the conditions of transportation.
(2) The statements in the air waybill relating to the
weight, dimensions, and packing of the goods, as well as
those relating to the number of packages, shall be prima
facie evidence of the facts stated; those relating to the
quantity, volume, and condition of the goods shall not
constitute evidence against the carrier except so far as they
both have been, and are stated in the air waybill to have
App. 28
—
been, checked by him in the presence of the consignor, or
relate to the apparent condition of the goods.
Article 12
(1) Subject to his liability to carry out all his
obligations under the contract of transportation, the
consignor shall have the right to dispose of the goods by
withdrawing them at the airport of departure or destination,
or by stopping them in the course of the journey on any
landing, or by calling for them to be delivered at the place of
destination, or in the course of the journey to a person other
than the consignee named in the air waybill, or by requiring
them to be returned to the airport of departure. He must not
exercise this right of disposition in such a way as to prejudice
the carrier or other consignors, and he must repay any
expenses occasioned by the exercise of this right.
(2) If it is impossible to carry out the orders of the
consignor the carrier must so inform him forthwith.
(3) If the carrier obeys the orders of the consignor for
the disposition of the goods without requiring the
production of the part of the air waybill delivered to the
latter, he will be liable, without prejudice to his right of
recovery from the consignor, for any damage which may be
caused thereby to any person who is law! ‘ly in possession of
that part of the air waybill.
(4) The right conferred on the consignor shall cease at
the moment when that of the consignee begins in accordance
with article 13, below. Nevertheless, if the consignee declines
to accept the waybill or the goods, or if he cannot be
communicated with, the consignor shall resume his right of
disposition.
App. 29
Article 13
(1) Except in the circumstances set out in the
preceeding article, the consignee shall be entitled, on arrival
of the goods at the place of destination, to require the carrier
to hand over to him the air waybill and to deliver the goods
to him, on payment of the charges due and on complying
with the conditions of transportation set out in the air
waybill.
(2) Unless it is otherwise agreed, it shall be the duty of
the carrier to give notice to the consignee as soon as the
goods arrive.
(3) If the carrier admits the loss of the goods, or if the
goods have not arrived at the expiration of seven days after
the date on which they ought to have arrived, the consignee
shall be entitled to put into force against the carrier the
rights which flow from the contract of transportation.
Article 14
The consignor and the consignee can respectively
enforce all the rights given them by artes 12 and 13, each
in his own name, whether he is acting in his own interest or
in the interest of another, provided that he carries out the
obligations imposed by the contract.
Article 15
(1) Articles 12, 13, and 14 shall not affect either the
relations of the consignor and the consignee with each other
or the relations of third parties whose rights are derived
either from the consignor or from the consignee.
(2) The provisions of articles 12, 13, and 14 can only be
varied by express provision in the air waybill.
App. 30
Article 16
(1) The consignor must furnish such information and
attach to the air waybill such documents as are necessary to
meet the formalities of customs, octroi, or police before the
goods can be delivered to the consignee. The consignor shall
be liable to the carrier for any damage occasioned by the
absence, insufficiency, or irregularity of any such
information or documents, unless the damage is due to the
fault of the carrier or his agents.
(2) The carrier is under no obligation to enquire into
the correctness or sufficiency of such information or
documents.
Chapter III. Liability of Carrier
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 oi
embarking or disembarking.
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
transportation by air.
(2) The transportation by air within the meaning of
the preceding paragraph shall comprise the period during
which the baggage or goods are in charge of the carrier,
App. 31
whether in an airport or on board an aircraft, or, in the case
of a landing outside an airport, in any place whatsoever.
(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
to the contrary, to have been the result of an event which
took place during the transportation by air.
Article 19
The carrier shall be liable for damage occasioned by
delay in the transportation by air of passengers, baggage, or
goods.
Article 20
(1) The carrier shall not be liable if he proves that he
and his agents have taken all necessary measures to avoid
the damage or that it was impossible for him or them to take
such measures.
(2) 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.
Article 21
If the carrier proves that the damage was caused by or
contributed to by the negligence of the injured person the
App. 32
court may, in accordance with the provisions of its own law,
exonerate the carrier wholly or partly from his liability.
Article 22
(1) In the transportation of passengers the liability of
the carrier for each passenger shall be limited to the sum of
125,000 francs. Where, in accordance with the law of the
court to which the case is submitted, damages may be
awarded in the form of periodical payments, the equivalent
capital value of the said payments shall not exceed 125,000
francs. Nevertheless, by special contract, the carrier and the
passenger may agree to a higher limit of liability.
(2) In the transportation of checked baggage and of
goods, the liability of the carrier shall be limited to a sum of
250 francs per kilogram, unless the consignor has made, at
the time when the package was handed over to the carrier, a
special declaration of the value at delivery and has paid a
supplementary sum if the case so requires. In that case the
carrier will be liable to pay a sum not exceeding the declared
sum, unless he proves that that sum is greater than the
actual value to the consignor at delivery.
(3) As regards objects of which the passenger takes
charge himself the liability of the carrier shall be limited to
5,000 francs per passenger.
(4) The sums mentioned above shall be deemed to
refer to the French franc consisting of 652 milligrams of
gold at the standard of fineness of nine hundred
thousandths. These sums may be converted into any
national currency in round figures.
App. 33
Article 23
Any provision tending to relieve the carrier of liability
or to fix a lower limit than that which is laid down in this
convention shall be null and void, but the nullity of any such
provision shall not involve the nullity of the whole contract,
which shall remain subject to the provisions of this
convention.
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 25
(1) The carrier shall not be entitled to avail himself of
the provisions of this convention which exclude or limit his
liability, if the damage is caused by his wilful misconduct or
by such default on his part as, in accordance with the law of
the court to which the case is submitted, is considered to be
equivalent to wilful misconduct.
(2) Similarly the carrier shall not be entitled to avail
himself of the said provisions, if the damage is caused under
the same circumstances by any agent of the carrier acting
within the scope of his employment.
App. 34
Article 26
(1) Receipt by the person entitled to the delivery of
baggage or goods without complaint shall be prima facie
evidence that the same have been delivered in good
condition and in accordance with the document of
transportation.
(2) In case of damage, the person entitled to delivery
must complain to the carrier forthwith after the discovery of
the damage, and at the latest, within 3 days from the date of
receipt in the case of baggage and 7 days from the date of
receipt in the case of goods. In case of delay the complaint
must be made at the latest within 14 days from the date on
which the baggage or goods have been placed at his disposal.
(3) Every complaint must be made in writing upon the
document of transportation or by separate notice in writing
dispatched within the times aforesaid.
(4) Failing complaint within the times aforesaid, no
action shall lie against the carrier, save in the case of fraud
on his part.
Article 27
In the case of the death of the person liable, an action
for damages lies in accordance with the terms of this
convention against those legally representing his estate.
Article 28
(1) An action for damages must be brought, at the
option of the plaintiff, in the territory of one of the High
Contracting Parties, either before the court of the domicile
of the carrier or of his principal place of business, or where
App. 35
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 29
(1) The right to damages shall be extinguished if an
action is not brought within 2 years, reckoned from the date
of arrival at the destination, or from the date on which the
aircraft ought to have arrived, or from the date on which the
transportation stopped.
(2) The method of calculating the period of limitation
shall be determined by the law of the court to which the case
is submitted.
Article 30
(1) In the case of transportation to be performed 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 performed under his supervision.
(2) In the case of transportation of this nature, the
passenger or his representative can take action only against
the carrier who performed the transportation during which
the accident or the delay occurred, save in the case where, by
express agreement, the first carrier has assumed liability for
the whole journey.
App. 36
(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.
Chapter IV. Provisions Relating to
Combined Transportation
Article 31
(1) In the case of combined transportation performed
partly by air and partly by any other mode of transportation,
the provisions of this convention shall apply only to the
transportation by air, provided that the transportation by
air falls within the terms of article 1.
(2) Nothing in this convention shall prevent the
parties in the case of combined transportation from inserting
in the documeni of air transportation conditions relating to
other modes of transportation, provided that the provisions
of this convention are observed as regards the transportation
by air.
’
Chapter V. General and Final Provisions
Article 32
Any clause contained in the contract and all special
agreements entered into before the damage occurred by
which the parties purport to infringe the rules laid down by
this convention, whether by deciding the law to be applied,
or by altering the rules as to jurisdiction, shall be null and
App. 37
void. Nevertheless for the transportation of goods
arbitration clauses shall be allowed, subject to this
convention, if the arbitration is to take place within one of
the jurisdictions referred to in the first paragraph of
article 28.
Article 33
Nothing contained in this convention shall prevent the
carrier either from refusing to enter into any contract of
transportation or from making regulations which do not
conflict with the provisions of this convention.
Article 34
This convention shall not apply to international
transportation by air performed by way of experimental trial
by air navigation enterprises with the view to the
establishment of regular lines of air navigation, nor shall it
apply to transportation performed in _ extraordinary
circumstances outside the normal scope of an air carrier’s
business.
Article 35
The expression “days” when used in this convention
means current days, not working days.
Article 36
This convention is drawn up in French in a single copy
which shall remain deposited in the archives of the Ministry
for Foreign Affairs of Poland and of which one duly certified
copy shall be sent by the Polish Government to the
Government of each of the High Contracting Parties.
App. 38
Article 37
(1) This convention shall be ratified. The instruments
of ratification shall be deposited in the archives of the
Ministry for Foreign Affairs of Poland, which shall give
notice of the deposit to the Government of each of the High
Contracting Parties.
(2) As soon as this convention shall have been ratified
by five of the High Contracting Parties it shall come into
force as between them on the ninetieth day after the deposit
of the fifth ratification. Thereafter it shall come into force
between the High Contracting Parties which shall have
ratified and the High Contracting Party which deposits its
instrument of ratification on the ninetieth day after the
deposit.
(3) It shall be the duty of the Government of the
Republic of Poland to notify the Government of each of the
High Contracting Parties of the date on which this
convention comes into force is well as the date of the deposit
of each ratification.
Article 38
(1) This convention shall, after it has come into force,
remain open for adherence by any state.
(2) The adherence shall be effected by a notification
addressed to the Government of the Republic of Poland,
which shall inform the Government of each of the High
Contracting Parties thereof.
(3) The adherence shal! take effect as from the
ninetieth day after the notification made to the Government
of the Republic of Poland.
App. 39
Article 39
(1) Any one of the High Contracting Parties may
denounce this convention by a notification addressed to the
Government of the Republic of Poland, which shall at once
inform the Government of each of the High Contracting
Parties.
(2) Denunciation shall take effect six months after the
notification of denunciation, and shall operate only as
regards the party which shall have proceeded to
denunciation.
Article 40
(1) Any High Contracting Party, may at the time of
signature or of deposit of ratification or of adherence,
declare that the acceptance which it gives to this convention
does not apply to all or any of its colonies, protectorates,
territories under mandate, or any other territory subject to
its sovereignty or its authority, or any other territory under
its suzerainty.
(2) Accordingly any High Contracting Party may
subsequently adhere separately in the name of all cz any of
its colonies, protectorates, territories under mandate, or any
other territory subject to its sovereignty or to its authority or
any other territory under its suzerainty which have been
thus excluded by its original declaration.
(3) Any High Contracting Party may denounce this
convention, in accordance with its provisions, separately or
for all or any of its colonies, protectorates, territories under
mandate, or any other territory subject to its sovereignty or
to its authority, or any other territory under its suzerainty.
App. 40
Article 41
Any High Contracting Party shall be entitled not earlier
than two years after the coming into force of this convention
io call for the assembling of a new international conference
in order to consider any improvements which may be made
in this convention. To this end it will communicate with the
Government of the French Republic which will take the
necessary measures to make preparations for such
conference.
This convention, done at Warsaw on October 12, 1929,
shall remain open for signature until January 31, 1930.
App. 41
[Docket No. 17325; Order No. E-23680]
LIABILITY LIMITATIONS OF WARSAW
CONVENTION AND HAGUE PROTOCOL
Order Approving Agreement
Adopted by the Civil Aeronautics Board at its office in
Washington, D.C., on the 13th day of May, 1966.
The Convention for the Unification of Certain Rules
Relating to International Transportation by Air, generally
known as the Warsaw Convention, creates a uniform body of
law with respect to the rights and responsibilities of
passengers, shippers, and air carriers in international air
transportation. The United States became a party to the
Convention in 1934, and eventually over 90 countries
likewise became parties to the Convention.' On
November 15, 1965, the U.S. Government gave notice of
denunciation of the Convention, emphasizing that such
action was solely because of the Convention’s low limits of
liability for personal injury or death to passengers. Pursuant
to Article 39 of the Convention this notice would become
effective upon 6 months’ notice, in this case, May 15, 1966.
Subsequently, the International Air Transport Association
(IATA) made efforts to effect an arrangement among air
carriers, foreign air carriers, and other carriers (including
carriers not members of IATA) providing the major portions
of international air carriage to and from the United States to
increase the limitations of liability now applicable to claims
for personal injury and death under the Convention and the
Protocol. The purpose of such action is to provide a basis
'The Convention was amended by the Protocol signed at Hague in
1955 which has never been ratified by the United States. The Convention
- (subjeet to certain provisions) limits carriers’ liability for death or injury
to passengers in international transportation to 125,000 gold francs, or
approximately $8,300. The Protocol, subject to certain provisions,
provides for liability limitations of approximately $16,600.
App. 42
upon which the United States could withdraw its notice of
denunciation.
The arrangement proposed has been embodied-in an
agreement (Agreement CAB 18900) between various air
carriers, foreign air carriers, and other carriers which has
been filed with the Board pursuant to section 412(a) of the
Federal Aviation Act of 1958 and Part 261 of the Board’s
economic regulations and assigned the above-designated
CAB number.
By this agreement, the parties thereto bind themselves
to include in their tariffs, effective May 16, 1966, a special
contract in accordance with Article 22(1) of the Convention
or the Protocol providing for a limit of liability for each
passenger for death, wounding, or other bodily injury of
$75,000 inclusive of legal fees, and, in case of a claim brought
in a State where provision is made for separate award of
legal fees and costs, a limit of $58,000 exclusive of legal fees
and costs. These limitations shall be applicable to
international transportation by the carrier as defined in the
Convention or Protocol which includes a point in the United
States as a point of origin, point of destination, or agreed
stopping place. The parties further agree to provide in their
tariffs that the Carrier shall not, with respect to any claim
arising out of the death, wounding, or other bodily injury of
a passenger, avail itself of any defense under Article 20(1) of
the Convention or the Convention as amended by the
Protocol. The tariff provisions would stipulate, however,
that nothing therein shall be deemed to affect the rights and
liabilities of the Carrier with regard to any claim brought by,
on behalf of, or in respect of any person who has willfully
caused damage which results in death, wounding, or other
bodily injury of a passenger.
The carriers by the agreement further stipulate that
they will, at time of delivery of the tickets, furnish to each
App. 43
EEE —
passenger governed by the Convention or the Protocol and
by the special contract described above, a notice in 10 point
type advising international passengers of the limitations of
liability established by the Convention or the Protocol, or
the higher liability agreed to by the special contracts
pursuant to the Convention or Protocol as described above.
The agreement is to become effective upon approval by this
Board, and any carrier may become a party to it by signing a
counterpart thereof and depositing it with the Board.
Withdrawal from the agreement may be effected by giving
12 months’ written notice to the Board and the other Carrier
parties thereto.
As indicated, the decision of the U.S. Government to
serve notice to denounce the Convention was predicated
upon the low liability limits therein for personal injury and
death. The Government announced, however, that it would
be prepared to withdraw the Notice of Denunciation if, prior
to its effective date, there is a reasonable prospect for
international agreement on limits of liability for
international transportation in the area of $100,000 per
passenger or on uniform rules without any limit of liability,
and if pending such international agreement there is a
provisional arrangement among the principal international
air carriers providing for liability up to $75,000 per
passenger.
Steps have been taken by the signing carriers to have
tariffs become effective May 16, 1966, upon approval of this
agreement, which will increase by special contract their
liability for personal injury or death as described herein. The
signatory carriers provide by far the greater portion of
international transportation to, from, and within the United
States. The agreement will result in a salutory increase in
the protection given to passengers from the increased
liability amounts and the waiver of defenses under
Article 20(1) of the Convention or Protocol. The U.S.
App. 44
Government has concluded that such arrangements warrant
withdrawal of the Notice of Denunciation of the Warsaw
Convention. Implementation of the agreement will permit
continued adherence to the Convention with the benefits to
be derived therefrom, but without the imposition of the low
liability limits therein contained upon most international
travel involving travel to or from the United States. The
stipulation that no tariff provision shall be deemed to affect
the rights and liabilities of the carrier with regard to any
claim brought by, on behalf of, or in respect of any person
who has willfully caused damage which results in death,
wounding or other bodily injury of a passenger operates to
diminish any incentive for sabotage.
Upon consideration of the agreement, and of matters
relating thereto of which the Board takes notice, the Board
does not find that the agreement is adverse to the public
interest or in violation of the Act and it will be approved.
Accordingly, pursuant to the provisions of the Federal
Aviation Act of 1958, and particularly sections 102, 204(a),
and 412 thereof:
It is ordered, That: 1. Agreement CAB 18900 is
approved.
This order will be published in the FEDERAL REGISTER.
By the Civil Aeronautics Board.
[SEAL] Harold R. Sanderson,
Secretary.
[F.R. Doc. 66-5494; Filed, May 18, 1966; 8:49 a.m.]
App. 45
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