# Petition for Writ of Certiorari — Rein v. Pan American World Airways, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2538%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1991 - **Citation:** 502 U.S. 920 ## Text Oe ae 24 Supteme Coun, US IN THE Supreme Court of the United Sth, OF THE Gd OCTOBER TERM, 1991 — —— - | AUG 12 y9gp ae > DENICE H. REIN, et al., —_vV.— PAN AMERICAN WORLD AIRWAYS INCORPORATED, Petitioners, Respondent. DILIP JOSHI, —_vV.— PAN AMERICAN WORLD AIRWAYS INCORPORATED, et ai., Petitioners, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT PETITION-FOR WRIT OF CERTIORARI PLAINTIFFS’ STEERING COMMITTEE Karachi Hijacking Marc S. Moller Lead Counsel KREINDLER & KREINDLER 100 Park Avenue New York, New York 10017 (212) 687-8181 Daniel C. Cathcart Wm. Marshall Morgan On the Petition: Lee S. Kreindler Marc S. Moller Steven R. Pounian James P. Kreindler ai..c1 M. Kolko PLAINTIFFS’ COMMITTEE Lockerbie Disaster Lee S. Kreindler Chairman and Counsel of Record KREINDLER & KREINDLER 100 Park Avenue New York, New York 10017 (212) 687-8181 Michel F. Baumeister Richard E. Brown Stanley M. Chesley Nicholas Gilman Frank H. Granito, Jr. i QUESTIONS PRESENTED FOR REVIEW Does the Warsaw Convention Treaty, despite its plain lan- guage, create an exclusive cause of action, preempting state statutory and common law? Does the exclusion of punitive damages liability to passen- gers, when their damage has been caused by an airline’s wil- ful misconduct, violate the plain language of the Warsaw Convention? Does the Warsaw Convention, which is silent on the sub- ject, deny well recognized state common law and statutory law rights to punitive damages? ii LIST OF PARTIES TO THE PROCEEDING* ° Rein v. Pan American World Airways (‘‘Lockerbie Disaster’’) The following plaintiffs are parties to this proceeding: Denice H. Rein; John J. Schultz; Rosanne Weston; Madeline Shapiro; John Frick Root; George H. Williams and Helena A. Williams; Arnold Asrelsky and Hope Asrelsky; Lynne R. Fraidowitz; Arnold Victor Butler; John B. Zwynenburg; Molena A. Porter; Charles M. Rosenthal; Salvatore V. Capasso and Betty-Ann Capasso; Dona B. Bainbridge; Judith A. Pagnucco; Raymond Jermyn, Sr. and Margaret M. Jermyn; Mary M. Stratis; Kathryn G. Daniels; Mary Lou Ciulla; Helen E. Hawkins; Shirin A. Vejdany; Maggie Boatman; Bernadette R. Hurst; Lisa Platt; William W. Hollister; Peter Lowenstein; Elizabeth Delude-Dix; Rose Mary Copeland; Sudhakar Dixit; Sudhakar Dixit; Larry Forsthe; Donald Malicote, Jr.; Nazir Jaafer; Roosevelt Smith; Philip M. DiMauro; Stephanie L. Bernstein; Luisa Della Ripa; Eleanor Hoey Bright; Geraldine G. Buser; Paul Halsch; Geraldine Buser; Patricia L. Kingham; Rhoda P. Miller; Jacob Posen and Bonnie J. Gregge; Leonard T. Rencevicz; William H. Johnson and Grace Johnson; M.T. Ergin; Robert Leckburg; Anthony B. Hall and Philippa W.M. Hall; Robert Leckburg; Florence Bis- sett; John Draheim; William J. Marek; Pamela K. Akerstrom; Ivy Ng Trimmer-Smith; Shachi Rattan; David Bell; Daniel Edward Cohen and Susan H. Cohen; Palmer N. Smith; Anne Hudson; Florencio Quiguyan; Tammy B. Chenoweth; Faith Pescatore; Melvin Bell; Leonard Colasanti and Joanne Colasanti; Margaret C. Coursey; Robert L. Coursey and Scott E. Coursey; Eugene A. Saraceni; Marilyn Swan; Meryl Shahun Rosen; Rose- mary Mild and James K. Wolfe; Lynn K. Garczynski; Terry F. Gould; Glenn P. Johnson; Phillip B. Bergstrom; Felix Teran; Peter. M. McCarthy; Allen Benello; William M. Pitt and Sallie H. Pitt; Susan E. Walker; John Flynn; Yvonne Reeves; Anthony J. Cardwell and Barbara A. Cardwell; Lucille Ben- field; Edmundo L. Caffarone and Graciela Caffarone; Barbara W. Lieber- man; George W. Wilson and Kate B. Wilson; Alan M. Davis; Marina M. Kulukundis; Elaine C. Wright; Jane E. Davis; John M. Cory; Velma Jean McGuire; Larry B. Gibson; Barbara Richardson; Michael A. Scott; Eileen T. O’Connor; Thomas Fonteller; Judith Papadopoulos; Susan M. Kosmowski; George L. Sheanshang; Anne H. Gillis; Michael J. Doyle; Barbara M. Weedon; Franziska Schauble; Ellen M. Lariviere; Patricia A. Martin; Harshida Schroff; Raquel L. Benvenuto; Patricia J.S. Simpson; Barbara A. Ahern and Thomas A. Ahern; Siobhan D. Mulroy; Dierdre T. Fortune; John C. Parker; Thomas E. Dater; Carolyn Ammerman; Vera Young; Carol! McCollum; Perry Dornstein; Leo Cawley; William G. Atkinson; Suzanne Martin; Alf Corner and Pauline Corner; Joan C. Smith and Edward F. Smith; Diana Browner; Michael Woolf Tager; Rita Kelly; Catherine Sigal; Oregon Rogers; Glendon L. Rafferty; Michael Waido; Tatiana Guevorguian; Ervin Phillips; Wendy A. Giebler; Patricia A. Brunner; Marion K. Alder- man; Marion K. Alderman; Beverly Braniff Jeck; Sandra B. Clarren; Fran- coise Boyer; Everett Woods and Ollie Woods; Vera van Tienhoven; Tadashi ill Tanaka and Emi Tanaka; Kenneth S. Barclay; Marjorie G. McKee; Walter G. Morson; Aphrodite Tsairis; John Boland and Jane Boland; Loulie Canady; Susan G. Bennett; William Hudson; Sharda Bhatia. Joshi v. Pan American World Airways (‘‘Karachi Hijacking’’) The follow- ing plaintiffs are parties to this proceeding: Dilip Joshi; Nadya Hussain and Tahira Lodhi; Dilip Parikh; Faraidoon Oshtory; Deepak C. Mehra; Pretty George and George Mathai; Avani B. Shah, Rupal B. Shah and Bipin M. Shah; Preeti Bhuva, Harshad Bhuva, Urjita Parekh, Bharat Parekh, Dwijal Dave and Khitendra Dave; Ajay Patel and Parvati Patel; Manjula S. Patel, Mehul Patel, Sangita Patel and Nikita Pital; Mahendra R. Patel and Rekha P. Kumar; Siddartha Reddy and Asha Rikddy; Sumit Bhandari; Heena Parikh; Urmila Parikh; Nilima Shah; Catherine Dumas; Shakuntala P. San- chala; Jyotsna Bhandari; Sharon Bhandari; Yashwant S. Bhandari; San- danand Singh, Samir Singh, and Kala Singh; Dorothy Peddi; Fareena Sultan Ahmed; Kyshore Murthy; Savithri Bhat; Aisha Begum and Mehboob Khan; Sanjay Patel and C.N. Patel; Bakul Shah and Vasanti Shah; Hara Gopal, Hadi Ali Rizvi, Mrs. Hadi Ali Rizvi, Nigar Zehra Rizvi, Farhana Rizvi, Hansa Merchant, Kankuben Gala, Jaswantiben Shah, Raksha Harshadral Shah, Pratik Shah, Jignisha H. Shah, Harshad Shah, Mrs. Farhat Hussain, Nabihah Y. Hussain, Hammed Hussain, Armish Bhaett, Jayaben R. Sanghani, Mrs. Jayaben Sanghani, Jay Grantier, M. Jayed, R.A. Hamed, Malik Netrakanti, Imram Ali and Khadiya Ali; Gayatri Dave, Gargi Dave and Vinod Dave; Shekhar Mitra and Anuradha Mitra; Nayan Pancholi; Shainaz Bhatia Gulamani, Bahikdaban Bhatia and Fatima Bhatia; Aarif Gulamani, Kabir Gulamani and Jubilee Gulamani, Paraq Sheth, Father Anthony Theordore, Said Faiz Kidwai, Suhail Qanar and Madhukanta Patel; Vishal Patel and Kirtjkunar Dhayabhai Patel; Parita Patel; Ranjaben Patel, Jayshreeber Patel and Pravin Patel; Jasmine Asher and Arun Asher; Khan- jan Dalal, Kalpesh Dalal, Kalpana Shah, Deepali Desai, Mehul Shith, Utpala Desai, Milind Sharad Desai, Narendra R. Desai and Swati M. Desai; Urmi Parikh, Shilpa Patel and Priti Shah; Mukul Vaingankar, Michael Goldstein, Gloria Goldstein, Kumar Kulkarni and Arshad Faruqui; Hardayal Mehta, Anjna Mehta and Kanak Mehta; Krishnaveni Thanikaimoni, Ravindran Thanikaimoni and Kirthana Thanikaimoni; Zeba Hamid, Kamran Hamid, Jazia Hamid and Syed Hamid; Nagin Patel, Tara Patel, Satish Patel, Nathu- bai Patel, Govind Patel, Chotubhai Patel, Jamna Patel and Ganga Patel; Dr. Ramesh V. Bhat; Pancha Darji; Mazherullah Baig, Khalidia Baig, Shrikant Patel, Shatel Patel, Hara Gopal, Kusum Naik, Harshad Shah, Mohammed Hussain, Madhavdas Merchant, Roberto Munoz Flores, Delfina Roque de Munoz, Francisco Javier Munoz, Micaela de Munoz, Ricardo de Munoz, Mariana de Munoz, Oralia Garcia de Alvarez, Amicuta de Alvarez, Amelia de Alvarez, Elisa de Alvarez, Jose Antonio de Alvarez, Oralia de Alvarez, Norma de Alvarez, Jonathan de Alvarez and Julio Caesar de Alvarez; Rajiv Thakkar; Vinod Dave and Niranjana Dave; Gautam Dasgupta, Antusa Dasgupta, Anisha Dasgupta and Denali Dasgupta; Kusum Naik, Shrinivas iv Naik, Shirish R. Naik, Sameer R. Naik and Seema Naik; Susan Kurian; Tahira Khalid; Vallabhbhai T. Sanchala; Amrutla! Darji; Meenu Sundareson and Shanker Sundareson; Anna Kurumthottathil, Bennett Kurumthottathil and Bibil Kurumthottathil; Bashir Amin; Naseeruddin Mahnrood; John T. Harper; Shaily J. Raval; Mona Patel; Edessaryvalapp Unnikrishnan and Usha Unnikrishnan; Indira M. Popat, Mulraj Popat, Anu R. Thakkar and Saroj Ruparel; Hansa Joshi. The defendant is Pan American World Airways, Inc. TABLE OF CONTENTS QUESTIONS PRESENTED FOR REVIEW... LIST OF PARTIES TO THE PROCEEDING py 3 Be es oo |: Se SUMMARY OF ARGUMENT .............. * PAGE “eee eree I. CERTIORARI SHOULD BE GRANTED TO RESOLVE A CONFLICT BETWEEN THE CIRCUITS ON WHETHER THE WARSAW CONVENTION TREATY PROVIDES AN EXCLUSIVE CAUSE OF ACTION, AND TO OVERRULE AN INTERPRETATION OF THE TREATY IN CONFLICT WITH ITS PLAIN LANGUAGE AND CONTRARY TO ACCEPTED PREEEMPTION ANALYSIS... A. The holding of exclusivity and preemption was central to the dismissal, below, of the punitive damages claims................. B. The holding of exclusivity and preemption has wide-ranging consequences in Warsaw COUN GOD 6 ood ccevecdcsncncvaccwess Il. C) vi PAGE The holding of exclusivity and preemption conflicts with holdings of the Ninth Cir- cuit, the highest court of one state, and Nt ih titre Wid sib 000646 Osea akew The holding of exclusivity and preemption is contrary to the plain language of the WON CRUIUUIIIOD 6c ccccdccccccvcvcces The holding of exclusivity and preemption is contrary to the views of leading com- DCCL toe noeeaueemes eo eon ee ane ss The holding of exclusivity and preemption conflicts with the Convention’s direction to leave damages to local law.............. . The holding of exclusivity and preemption is contrary to accepted preemption analysis . The holding of exclusivity and preemption confuses the Convention’s creation of a cause of action with its self-contained sim- ple liability rules, as to which uniformity was prescribed. The uniformity prescribed by the Treaty does not require or even invite exclusivity of the cause of action or preemption of state law................. The holding of exclusivity and preemption ignores the historical perspective in which the Convention was enacted............. CERTIORARI SHOULD BE GRANTED TO REVIEW AN INTERPRETATION OF THE TREATY THAT IGNORES ITS PLAIN LANGUAGE THAT AN EXCLUSION OF LIABILITY WILL BE DENIED TO AN AIR- LINE WHEN THE DAMAGE HAS BEEN CAUSED BY ITS WILFUL MISCONDUCT. 12 14 15 15 17 19 21 22 Vii PAGE III. CERTIORARI SHOULD BE GRANTED BECAUSE THE DECISION BELOW CON- FLICTS WITH DECISIONS OF THIS COURT WHICH UPHOLD COMMON LAW PUNITIVE DAMAGES AND BECAUSE IT MISCONSTRUES A TREATY WHICH WAS NOT INTENDED TO EXTINGUISH COM- MON LAW RIGHTS EXCEPT AS SPECIFI- CREE Oe 0 oo rss cnccscccncveueetes 24 A. A punitive damages bar conflicts with recent decisions of this Court which uphold common law punitive damages and consider common law tradition as part of Warsaw’s background................... 24 B. Article 24 preserved common law punitive So ee 26 C. Article 17 establishes the conditions for airline liability and does not bar punitive SN 6 clad ua Si ob canke Verewascenkeeets 27 IV. CERTIORARI SHOULD BE GRANTED BECAUSE IMPORTANT QUESTIONS OF TREATY INTERPRETATION ARE TE sos cnbecvovesncestnennaveeneebs 29 CREE cbt reeebcvweeee es nevestessesecseees 30 PPE PEI 6 oe c cece ese cesecseeueenne sé Teetacdenes Al Viil TABLE OF AUTHORITIES Cases: , PAGE Abramson v. Japan Air Lines, 739 F.2d 130 (3d Cir. 1984), cert. denied, 470 U.S. 1059 (1985).......... 13, 17 Alvarez v. Aerovias Nacionales de Colombia, S.A. Avianca Inc., 750 F. Supp. 550 (S.D. Fla. 1991)..12-13, 22 Air France v. Saks, 470 U.S. 392 (1985)...... 8, 10, 29, 31 Benjamins v. British European Airways, 572 F.2d 913 (2d Cir. 1978), cert. denied, 439 U.S. 1114 (1979).. 17 Boehringer-Mannheim Diagnostics, Inc. v. Pan Ameri- can World Airways, 737 F.2d 456 (Sth Cir. 1984), app. dsm’d, cert. denied, 469 U.S. 1186 (1985) ....13, 17 Browning-Ferris v. Kelco Disposal, 492 U.S. 257 GL sh UaNG cs eee Nye ce aueceadakusseexesan 9, 25, 26, 27 Calderon v. Aerovias Nacionales de Colombia Avianca, Inc., 738 F. Supp. 485 (S.D. Fla. 1990), app. dism’d for lack of jurisdiction, 929 F.2d 599 Cee hs ns bos cose eae nee eecaserewectne ees 11, 13 California v. ARC America Corp., 490 U.S. 93 (1989) .18, 19 Chan v. Korean Air Lines, 490 U.S. 122 (1989).8, 14, 24, 31 Chesapeake & Ohio Railway Co. v. Kelly, 241 U.S. 485 er eer Pere er Pre ree 18 Cohen v. Varig Airlines, 62 A.D.2d 324, 405 N.Y.S.2d OS CR re a occ wck usa d eee te) casecescgaess 18 Eastern Airlines v. Floyd, 499 U.S. __, 113 L. Ed. ye Be te a Ot eer 8, 10, 31 Eggink v. Trans World Airlines, 1990 WL 6553, No. yee me FF 808 8 |= 6 re eee 11, 13 PAGE English v. General Electric Co., 495 U.S. ___., 110 eT So cag et Ee cath waeeest 19 Floyd v. Eastern Airlines, 872 F.2d 1462 (11th Cir. 1989), rev’d on other grounds, 499 U.S. ____, 113 L. Ed. 2d 569, 111 S.Ct. 1489 (1991) ......... 17, 19, 26 Guaranty Trust Co. of New York v. United States, 304 oe Ne eae ce ate eae es 22, 26 Harris v. Polskie Linie Lotnicze, 820 F.2d 1000 (9th SETI cine darn wis Gb 0.0000 000 Odewee we sue eedeene ae e) |) re 9, 2, ay 2), 3! Perkin Elmer (Computer Systems Division) v. Trans Mediterranean Airways, S.A.L., 107 F.R.D. 55 Rds OD encdath BUR eteb he ober besusaneeyen 13 Rhymes v. Arrow Air, 636 F. Supp. 737 (S.D. Fla. | SE ee ee em mare Meer tes ee Sher LE 13, 15 San Diego Building Trades Council v. Garmon, 359 U.S. 220 CIDR) «oc une OP Te PTC rer Ee Tr ee 20 Sheris v. Sheris Co., 212 Va. 825, 188 S.E.2d 367 (Va.), cert. denied, 409 U.S. 878 (1972)........... 14 Silkwood v. Kerr-McGee Corp., 464 U.S. 238 RA ers br ee ere er pear? 19, 26, 30 Smith v. Wade, 461 U.S. 30 (1983) .............. 9, 26, 30 Stanford v. Kuwait Airlines Corp., 705 F. Supp. 142 Sas oa: SEs Sua Sea cis aen res coaneharbneenee es 13 Tokio Marine & Fire Ins. Co. Ltd. v. McDonnell Douglas Corp., 617 F.2d 936 (2d Cir. 1980)....... 12 Trans World Airlines v. Franklin Mint, 466 U.S. 243 Rs GS Ose aca bn ete at ae rea eke aren At eee 26, 31 Velasquez v. Aerovias Nacionales de Colombia, S.A., Fat FB. Sapp. Gre GB. FM. FORD once ccccccscees 13 Washington v. Washington State Commercial Passen- ger Fishing Vessel Ass’n., 443 U.S. 658 (1979)..... 3] Statutes and Other Authorities: ae Oe EET och cua pad de ose cae e eevee acueens 2 Be ee UE 6553.5 o GAs boo es deae nh eee se eaaeess 5, 6 ee EE a 6.0 ie cb oa dee ehe Nees caeecees 4,5 Be Sse ah bso 60s -_> PETITION FOR WRIT OF CERTIORARI OPINIONS BELOW The opinion of the Court of Appeals for the Second Cir- cuit (App. A, infra, pp. Al to A52) is reported at 928 F.2d 1267 (2d Cir. 1991). It affirmed the district court holding in In re: Air Disaster at Lockerbie, Scotland on December 21, 1988 [Rein et al. v. Pan American World Airways, Incorpo- rated| (‘‘Lockerbie Disaster’’), and reversed the district court holding in Jn re: Hijacking of Pan American World Airways, Inc. Aircraft at Karachi International Airport, Pakistan On 2 Sept. 5, 1986 [Joshi et al. v. Pan American World Airways, Inc.| (‘Karachi Hijacking’’). The district court opinion in Lockerbie Disaster (App. B, infra, pp. B1 to B12) is reported at 733 F.Supp. 547 (E.D.N.Y. 1990). The district court opin- ion in Karachi Hijacking (App. C, infra, pp. Cl to C6) is reported at 729 F. Supp. 17 (S.D.N.Y. 1990). The two appeals were consolidated in the Second Circuit. JURISDICTION The judgment of the Court of Appeals (App. E, infra, El to E2) was entered on March 22, 1991. By order dated May 14, 1991 (App. D, infra, D1 to D2), the Court of Appeals denied a petition for rehearing containing a suggestion for rehearing en banc. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). PROVISIONS OF LAW INVOLVED These cases raise the interpretation of Articles 17, 24 and 25 of the Warsaw Convention Treaty.' WARSAW CONVENTION 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 air- craft or in the course of any of the operations of embarking or disembarking. | Convention for the Unification of Certain Rules Relating to Interna- tional Transportation by Air, October 12, 1929, 49 Stat. 3000, T.S. No. 876 (1934), reprinted in 49 U.S.C. § 1502 note (1976) (Warsaw 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. Articie 25 (1) The carrier shall not be entitled to avail himself of the provisions of this convention which exclude or limit his liabil- ity, 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 him- self 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. STATEMENT OF THE CASE Petitioners in Lockerbie Disaster are the surviving relatives and personal representatives of passengers aboard Pan Am Flight 103 from London to New York on December 21, 1988. About forty-five minutes after departure, a bomb inside a bag checked in the cargo hold of the 747 aircraft exploded. The plane broke apart in midair and crashed in Lockerbie, Scotland. All 259 passengers and crew were killed. Since Flight 103 involved ‘‘international transportation’”’ with a destination or stopping place in the United States, actions against Pan Am arising from the crash of Flight 103 4 are governed by the Warsaw Convention and Montreal Agreement.” Wrongful death actions seeking compensatory and punitive damages were commenced in various federal district courts. Federal jurisdiction was based on either federal question jurisdiction, 28 U.S.C. § 1331, under the Warsaw treaty, or diversity jurisdiction, 28 U.S.C. § 1332. The majority of complaints assert diversity and not federal question jurisdic- tion. The defendants named in these actions include the car- rier Pan Am, two Pan Am subsidiary corporations which provided security services for Flight 103, Alert Management Services, Inc. (Alert) and Pan Am World Services, Inc. (World Services), and Pan Am’s parent corporation, Pan Am Corp. All actions were consolidated for pretrial proceedings in the Eastern District of New York by order of the Judicial Panel on Multidistrict Litigation. On June 2, 1989, respondent Pan Am moved for partial summary judgment on petitioners’ punitive damage claims, claiming that punitive damages were barred by the Warsaw Convention.’ For the purposes of Pan Am’s motion, it was presumed that the carrier committed wilful misconduct justifying an award of punitive damages. The extensive proof supporting petitioners’ punitive damage claims was not submitted on the 2 Agreement Relating to Liability of the Warsaw Convention and Hague Protocol, Agreement CAB 18900, Approved by Executive Order E-23680, May 13, 1966 (Docket 17325), 31 Fed. Reg. 7302 (1966), reprinted in Civil Aeronautics Board, Aeronautical Statutes and Related Material 515- 16 (1974). The Montreal Agreement was signed by Pan Am in 1966 and has remained in place up until the present time. One of the terms of the Agree- ment increased the Warsaw damage limitation from $8,300 to $75,000 on passenger travel with a stopping place in the United States. 3 Defendants Alert and World Services joined in Pan Am’s motion, alleging “hat the Convention also applied to petitioners’ claims against the security companies. Since petitioners had not completed their discovery, the district court did not address the motion of Alert and World Services. Lock- erbie Disaster, B2. pure issue of law presented.* Moreover, it was presumed that the applicable local law permitted the recovery of punitive damages. On January 3, 1990, the District Court for the Eastern Dis- trict of New York entered a memorandum and order granting Pan Am’s motion. Petitioners timely moved for reargument, or in the alterna- tive, for the court to certify the memorandum and order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). On February 26, 1990, the district court entered a second memo- randum and order denying petitioners’ motion for reargu- ment, but granting § 1292(b) certification. The Second Circuit entered an order graniing permission to appeal on April 27, 1990. Petitioners in Karachi Hijacking are injured passengers and the surviving relatives and personal representatives of passen- gers killed in the hijacking of Pan Am Flight 73 on Septem- ber 6, 1986. Flight 73 was travelling from Bombay, India to New York, with stops at Karachi and Frankfurt, West Ger- many. The plane, with 386 passengers aboard, was hijacked by four armed terrorists at the Karachi airport. After holding the passengers and cabin crew hostage for twelve hours, the terrorists began to fire weapons and unload grenades in the cabin. Twenty were killed and scores injured, many seriously. Personal injury and wrongful death actions seeking com- pensatory and punitive damages were brought against Pan Am in various federal courts. The actions were consolidated for pretrial proceedings in the Southern District of New York by order of the Judicial Panel on Miultidistrict Litigation. Jurisdiction was based on either federal question jurisdiction, 28 U.S.C. § 1331, under the Warsaw treaty, or diversity jurisdiction, 28 U.S.C. § 1332. 4 Many of the facts which establish Pan Am’s misconduct and repeated violations of security standards for Flight 103 are set forth in the report of the Presidential Commission appointed by President Bush to inves- tigate the disaster. Report of the President’s Commission on Aviation Secu- rity and Terrorism, May 15, 1990, per Executive Order 12686 dated Aug. 4, 1989. 6 Most of petitioners’ actions in Karachi Hijacking against Pan Am are subject to the Warsaw Convention and Montreal Agreement.’ By memorandum opinion and order dated June 5, 1989, the district court denied Pan Am’s motion for partial sum- mary judgment on the issue of wilful misconduct, finding that there were triable issues of material facts. (713 F. Supp. 1483). On September 8, 1989, respondent Pan Am moved for par- tial summary judgment dismissing petitioners’ punitive dam- age claims. On January 18, 1990, the district court entered a memorandum opinion and order denying Pan Am’s motion. On May 10, 1991, the district court certified the memoran- dum opinion and order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). The Second Circuit entered an order granting permission to appeal on July 18, 1990. In the courts below, petitioners argued that the Warsaw Convention did not provide the exclusive cause of action for injuries and deaths occurring in international air transporta- tion, and that punitive damages were recoverable in Warsaw actions when allowed under local law. The Lockerbie and Karachi appeals were consolidated for argument. On March 22, 1991, the Second Circuit affirmed the district court in Lockerbie Disaster and reversed the dis- trict court in Karachi Hijacking. It held that the Warsaw Convention provided the exclusive cause of action, preempted all other causes of action, and did not permit recovery of punitive damages. The Second Circuit said that the Warsaw Convention [P]reempts state causes of action because differences in the various state laws . . . would introduce such great confusion into this subject as to destroy any hope of uniformity in applying the Convention. (A7; 928 F.2d at 1270). The Second Circuit’s denial of punitive damages was based on several grounds. The court held that Article 17’s language 5 Pan Am has claimed, however, that the Montreal Agreement does not apply to those passengers aboard Flight 73 travelling to Frankfurt. il ‘‘damage sustained’’ contemplated monetary or compensa- tory damages only. This finding, the court held, was sup- ported by ‘‘the context in which [Article 17] was written, the law of the contracting parties, subsequent interpretations, and the historical translation.’’ (A35; 928 F.2d at 1282). Addressing Article 24, the court held: [T]he drafting history of Article 24, together with the civil law background of the Convention, make it extremely unlikely that Article 24(2) was intended by its drafters to preserve a common iaw right to punitive damages. The drafter’s silence on this subject leads logically to the assumption that punitive damages were not addressed because they were never contemplated. (A41; 928 F.2d at 1284). Turning to Article 25, the court held: Article 25 voids only certain provisions in the event of willful misconduct, but the rest of the Convention remains fully operative, and the Convention as it then remains still is inconsistent with the notion of a punitive damages recovery. (A43; 928 F.2d at 1285). * = * [L]ifting the monetary limit on compensatory damages is the Convention’s sole response to willful miscon- duct. . . . (A44; 928 F.2d at 1285). Finally, the court concluded that ‘‘consideration of the purposes behind the Convention compel the conclusion that the shared expectations of the Convention’s drafters did not contemplate that punitive damages be available under the Convention.’’ (A48; 928 F.2d at 1287). A petition for rehearing containing a suggestion for rehear- ing en banc was denied by order of the Second Circuit dated and entered on May 14, 1991. Plaintiffs petition this Court for a writ of certiorari. 8 SUMMARY OF ARGUMENT Certiorari should be granted to resolve a conflict between the Second Circuit, and the Ninth Circuit and the highest court of Virginia, on whether the Warsaw Convention Treaty provides the exclusive cause of action and thus preempts state common law and statutory law. The Court of Appeals for the Second Circuit, below, dis- missed petitioners’ claims for punitive damages. The core of its position was its conclusion that when the Warsaw Conven- tion is applicable it establishes the exclusive cause of action, and that other causes of action, including those that allow punitive damages, are preempted. Absent preemption, state laws allowing punitive damages would be available in the case of wilful misconduct. This Court has always recognized the importance of its role in treaty interpretation. It has heretofore expressly declined to decide the exclusivity of the Convention, Eastern Airlines v. Floyd, 499 U.S. , 113 L. Ed. 2d 569, 588, 111 S. Ct. 1489 (1991), and Air France v. Saks, 470 U.S. 392, 408 (1985). The decision below is at variance with the plain language of Article 24 (2) of the treaty, which refers to actions ‘‘how- ever founded’’ and thus denies exclusivity. In Chan vy. Korean Air Lines, 490 U.S. 122, 135 (1989), this Court in construing this treaty said, ‘‘where the text is clear. . . we have no power to insert an amendment.’’ The court below also violated the plain language standard of Chan with respect to Article 25 of the Convention, which states that a carrier cannot avail itself of any exclusion or limitation of liability if the damage has been caused by its wilful misconduct; and with the plain language of the Con- vention that unified certain specified simple liability rules, irrespective of the source of the cause of action, and left other questions to local law. The Court should also grant the petition for certiorari because the Second Circuit’s preemption of state rights of action violates accepted preemption analysis. The circuit court’s holding was based on an alleged conflict between rec- 9 ognition of state claims and purported goals of complete uni- formity ascribed by the court below to the Convention’s draftsmen. There is no support whatsoever for the allegation that the drafters sought complete uniformity. Recognition of state claims which do not circumvent the Treaty’s monetary limitation does not create an actual conflict with any of the interests and goals sought to be achieved by the Convention. This Court should grant the petition for certiorari, also, because the decision below is in conflict with the analysis and review of punitive damages by this Court in Haslip as well as this Court’s refusal to read a punitive damages bar into two constitutional amendments and two statutes.° I CERTIORARI SHOULD BE GRANTED TO RESOLVE A CONFLICT BETWEEN THE CIRCUITS ON WHETHER THE WARSAW CONVENTION TREATY PROVIDES AN EXCLUSIVE CAUSE OF ACTION, AND TO OVERRULE AN INTERPRETATION OF THE TREATY IN CONFLICT WITH ITS PLAIN LANGUAGE AND CONTRARY TO ACCEPTED PREEMPTION ANALYSIS A. The holding of exclusivity and preemption was central to the dismissal, below, of the punitive damages claims The Court of Appeals for the Second Circuit, below, held that the federal cause of action arising under the Warsaw Convention is exclusive and that the ‘‘Warsaw Convention preempts state law causes of action arising under it’’. (A26; 928 F.2d at 1278). The exclusive cause of action provided by the Convention, the court held, is governed by the federal common law of tort. 6 Pacific Mutual v. Haslip, 499 U.S. » 113 L. Ed. 2d 1, 111 S. Ct. 1032 (1991); see also Browning-Ferris v. Kelko Disposal, 492 U.S. 257 (1989); Silkwood v. Kerr-McGee, 464 U.S. 238 (1984); Smith v. Wade, 461 U.S. 30 (1983). 10 This issue of exclusivity was expressly left open by this Court in Air France v. Saks, 470 U.S. 392, 408 (1985), and, more recently, in Eastern Airlines v. Floyd, 499 U.S. 113 L. Ed. 2d 569, 588, 111 S. Ct. 1489 (1991). The Court of Appeals, below, said: We conclude that the Convention preempts state causes of action because differences in various state laws— some of which view punitive damages as penal in nature, some compensatory, and some both—would introduce such great confusion into this subject as to destroy any hope of uniformity in applying the Convention. The Convention therefore bars state wrongful death actions in cases arising under it. (A6-7; 928 F. 2d at 1270). The finding of exclusivity by the Court below was a neces- sary part of its barring of punitive damages. Article 25 of the Convention directs that a carrier responsible for wilful mis- conduct ‘‘shall not be entitled to avail himself of the provi- sions of this convention which exclude or limit his liability If the Convention’s cause of action were not exclusive then other rights to punitive damages would exist under state com- mon law and statutory law. In New York, for example, where the actions are pending and Pan Am’s Headquarters are located, punitive damages are recoverable, by statute, in death cases. N.Y. Estates, Powers & Trusts Law § 5-4.3(b). In the event of wilful misconduct they would exist. Thus it was only the finding of exclusivity and preemption of state law claims that excluded punitive recoveries. Judge Mikva, dissenting in Jn re Korean Air Lines Disaster of September 1, 1983, 932 F.2d 1475 (D.C. Cir. 1991), said: It is one thing to say that the Convention prohibits puni- tive damages because it is the sole available cause of action and does not provide for them; it is quite another to conclude that Article 17 acts as a limitation on dam- ages restricting recovery under other causes of action that allow punitive damages (/d. at 1493). 1] B. The holding of exclusivity and preemption has wide- ranging consequences in Warsaw Convention cases The effect of this holding in the instant cases is to deny any recovery for punitive damages in these actions. The hold- ing, however, has wide-ranging consequences in all Warsaw Convention cases, and also impacts federal removal jurisdic- tion. It means, for example, that all Warsaw Convention cases, whether they be for personal injury, wrongful death, baggage loss, or damage to cargo, are likely to be handled by the federal courts. This is because any Warsaw case brought in state court would be removable. On the other hand, if, as petitioners contend, state law claims are cognizable, then these claims could be brought in state court and would not be subject to removal. See Calderon v. Aerovias Nacionales de Colombia, Avianca, Inc., 738 F. Supp. 485 (S.D. Fla. 1990) (state law complaint not removable; case remanded to state court), app. dism’d for lack of jurisdiction, 929 F.2d 599 (11th Cir. 1991); Eggink v. Trans World Airlines, 1990 WL 6553, No. 87 Civ. 3403 (S.D.N.Y. 1990) (‘‘the federal cause of action under the Warsaw Convention ts the exclusive cause of action’’ and what plaintiff has pleaded in his complaint ‘‘must necessarily be a federal claim’’; court denied plaintiffs’ cross motion to remand case to state court). The nature and elements of recoverable compensatory damages and the recipients of these damages, which have heretofore been governed in the United States by local law, are greatly affected by whether a claim is based on state law or federal common law. Under the decision below all Warsaw cases will be based on federal common law subject to the Convention’s limitations. The Second Circuit’s holding will, therefore, unless it is corrected, affect the nature and outcome of Warsaw litiga- tion for many years and many litigants. 12 C. The holding of exclusivity and preemption conflicts with holdings of the Ninth Circuit, the highest court of one state, and other courts The holding below squarely conflicts with the rulings of the Court of Appeals for the Ninth Circuit in Johnson v. Ameri- can Airlines, 834 F.2d 721, 723 (9th Cir. 1987); In re Air- crash in Bali, Indonesia, 684 F.2d 1301, 1311 n. 8 (9th Cir. 1982) (‘‘{T]he Convention has never been read to /imit plain- tiffs to a cause of action arising thereunder, but rather to limit the recovery in suits for injury’’); and Jn re Mexico City Aircrash of October 31, 1979, 708 F.2d 400, 414 n. 25 (9th Cir. 1983) (reading Bali as holding that ‘‘any cause of action created by Warsaw Convention is not exclusive’’). In Mexico City, supra, the Ninth Circuit held: {T]he delegates did not intend that the cause of action created by the Convention to be exclusive. . . state law causes of action may be invoked by plaintiffs injured during international air transportation. Such causes of action might, consistently with the Convention, provide varying measures of damages or varying specifications of persons entitled to recover... . Jd. at 414, n. 25. The Second Circuit’s holding also conflicts with the conclu- sions of several other federal courts and judges. See Jn re Korean Air Lines Disaster of September 1, 1983, 932 F.2d 1475, 1492 (D.C. Cir. 1991) (dissenting opinion by Mikva, J.) (The Second Circuit’s exclusivity holding in Lockerbie Disas- ter is ‘‘fundamental error’’. The majority did not reach this issue);’ Tokio Marine & Fire Ins. Co. Ltd. v. McDonnell Douglas Corp., 617 F.2d 936, 942 (2d Cir. 1980), inferen- tially overruled by the court below, (stating that the language of Article 24 indicates that ‘‘the Convention draftsmen. . did not intend . . . [the Convention’s] cause of action to be 7 Korean Air Lines held that no punitive damages were allowed in a case governed by the Warsaw Convention. Plaintiffs in that case based their claim to such damages on general maritime law. The Korean Air Lines plain- tiffs have filed a Petition for Certiorari on the punitive damages issue, raising many of the same issues presented in this Petition. 13 exclusive’’); Alvarez v. Aerovias Nacionales de Colombia, S.A., Avianca Inc., 756 F. Supp. 550 (S.D. Fla. 1991); Rhymes v. Arrow Air, 636 F. Supp. 737, 741 (S.D. Fla. 1986) (Warsaw does not provide exclusive cause of action in cases where it applies but an exclusive remedy; ‘‘the Plaintiff may choose to state his cause of action solely on a state law theory . . . subject to the limitations of the Convention’’); Calderon vy. Aerovias Nacionales de Colombia, Avianca, Inc., 738 F. Supp. 485 (S.D. Fla. 1990), app. dism’d for lack of jurisdiction, 929 F. 2d 599 (11th Cir. 1991); In re Air Crash Disaster at Gander, Newfoundland, 660 F. Supp. 1202, 1221 (W.D. Ky. 1987) (Warsaw not intended to displace state law); Perkin Elmer (Computer Systems Division) v. Trans Mediterranean Airways, S.A.L., 107 F.R.D. 55, 61 (E.D.N.Y. 1985) (‘‘state law cause of action may be availa- ble, even if a federal claim exists under the Convention’’). These decisions have been largely based on the ‘‘however founded’’ language of Article 24 of the Convention (see Sec- tion I(D) p. 14, infra.) Several other courts, including the Court of Appeals for the Fifth Circuit, have taken the same exclusivity position as the court below. Boehringer-Mannheim Diagnostics, Inc. v. Pan American World Airways, 737 F.2d 456, 459 (Sth Cir. 1984) app. dsm’d, cert. denied, 469 U.S. 1186 (1985); Velas- quez v. Aerovias Nacionales de Colombia, S.A., 747 F. Supp. 670 (S.D. Fla. 1990); Stanford v. Kuwait Airlines Corp., 705 F. Supp. 142 (S.D.N.Y. 1989); Eggink v. Trans World Airlines, 1990 WL 6553, No. 87 Civ. 3403 (S.D.N.Y. 1990). Cf. Abramson v. Japan Air Lines, 739 F.2d 130, 134 (3d Cir. 1984), cert. denied, 470 U.S. 1059 (1985). In sum, the federal district and circuit courts are in conflict on whether the Warsaw Convention provides the exclusive cause of action, precluding even claims predicated on state law which adhere to the Convention’s express limitations and conditions. The highest court of Virginia has also reached a conclusion on the exclusivity issue in conflict with the decision below.’ 8 Sheris v. Sheris Co., 212 Va. 825, 188 S.E.2d 367 (Va.), cert. denied, 409 U.S. 878 (1972) (‘‘the Warsaw Convention does not create an indepen- ' 14 D. The holding of exclusivity and preemption is contrary to the plain language of the Warsaw Convention The Secoud Circuit’s exclusivity holding is directly contrary to the clear language of the Warsaw Convention.’ Article 24 states: --(1)-In the cases covered by articles 18 and 19 [i.e., bag- gage and delay claims] 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 [i.e., the death or injury of a passenger] 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. (Emphasis added.) The words ‘‘however founded’’ permit one conclusion— that rights of action outside the Convention may be brought, subject to the Convention’s limitations. They mean that the Convention cause of action is not exclusive. The ‘‘however founded’’ language has been relied on by several courts which have found the Convention cause of action non-exclusive. See citations Section I(C), pp. 12-13, supra. Further textual support for non-exciusivity comes from Article 24(2) which states that the Convention applies ‘‘with- out prejudice to the questions as to who are the persons who have the right to bring suit’? and ‘‘what are their respective rights.’’ (Emphasis added). dent right of action but only a presumption of liability leaving it for local law to grant the right of action’); Contra Newsome v. Trans International Air- ___lines,492 So. 2d 592, 599 (Ala. Sup. Ct.) (Warsaw preempts state common law causes of action), cert. denied, 479 U.S. 950 (1986). 9 In Chan v. Korean Air Lines, 490 U.S. 122 (1989), a Warsaw Con- vention case, the Supreme Court held ‘‘[w]e must thus be governed by the text. . . where the text is clear. . . we have no power to insert an amend- iment.’’ Jd. at 134. 15 E. The holding of exclusivity and preemption is contrary to the views of leading commentators A leading commentator has written that the Convention both created a cause of action and allowed tort actions to be brought outside the Convention. Calkins, The Cause of Action Under the Warsaw Convention, 26 J. Air L. & Com. 323, 327-8 (1959) (Calkins, the author, served as Chairman of the United States Delegation to the 1955 Hague Convention). Calkins concluded: There is nothing in the Convention which automatically makes the cause of action under Warsaw supercede all other causes of action... . Not only is the implication from the drafting of Article 24 clear that the possibility of tort action was contem- plated, but this point was specifically raised in the pre- liminary discussions held in Madrid by the Citeja. From Warsaw’s inception, commentators have agreed that the treaty is not exclusive. Drion, Limitation of Liabilities in International Air Law 135-6 (Martinus Nijhoff 1954) (Article 24 and its drafting history confirm that an action may be ‘*founded on the contract or brought outside the contract as an action in tort. . .’’); Matte, Treatise on Air-Aeronautical Law 382 (McGill University 1981), quoting R.C. Ac. Haye, Vol II, p. 285 (1934) (The Convention ‘‘set new bounds on an action in liability, boundary limits, but without regulating the essence itself.’’); Miller, Liability in International Air Transport 235 (Kluwer 1977) (‘‘The phrase ‘however founded’ in Article 24(1) shows that the drafters of the Con- vention were aware that an action might be brought on sev- eral possible grounds.’’). F. The holding of exclusivity and preemption conflicts with the convention’s direction to leave damages to local law Article 17 provides: The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any 16 other bodily injury suffered by a passenger, if the acci- dent which caused the damage so sustained took place on board the-aircraft . . While the courts have held that Article 17 creates a cause of action for passenger injuries or death,’® they have also uni- formly held that Article 17 does not define or limit the type of damages recoverable in Warsaw cases. The overwhelming majority of courts addressing the issue have held that Article 24(2) left questions of the elements of damages to local law, with application of the forum’s choice of law and substantive law rules. Harris v. Polskie Linie Lot- nicze, 820 F.2d 1000, 1002 (9th Cir. 1987) (‘‘the Warsaw Convention . . . does not precisely describe how to calculate damages in a wrongful death case’’ and ‘‘damages are to be measured according to the internal law of a party to the Con- vention’’); Jn re Aircrash in Bali, Indonesia, 684 F.2d 1301, 1306 (9th Cir. 1982) (applying California damage law, the court stated: ‘‘The Warsaw Convention requires recourse to local law to determine certain issues.’’); Karachi Hijacking, supra, 729 F.Supp. at 19 (S.D.N.Y. 1990), rev’d sub nom In Re Air Disaster at Lockerbie, Scotland, 928 F.2d 1267 (2d Cir. 1991) (‘‘the Convention leaves many issues to be gov- erned by the internal law of the parties to the Convention. One such issue is the question of what items of damages are recoverable.’’); Mertens v. Flying Tiger Line, 341 F.2d 851, 858 (2d Cir.), cert. denied, 382 U.S. 816 (1965), (‘‘regarding the issue as to which items of damage can be properly included in the award. . . [i]t seems clear that the Warsaw Convention left this issue, as it did other issues . . . to the internal law of the parties to the Convention . . .’’); Cohen v. Varig Airlines, 62 A.D.2d 324, 334, 405 N.Y.S.2d 44, 49 10 Floyd v. Eastern Airlines, 872 F.2d 1462, 1469 (11th Cir. 1989), rev’d on other grounds, 499 U.S. , 111 S. Ct. 1489, 113 L. Ed. 2d 569 (1991); Benjamins v. British European Airways, 572 F.2d 913, 916-9 (2d. Cir. 1978), cert. denied, 439 U.S. 1114 (1979); Boehringer-Mannheim Diag- nostics, Inc. v. Pan American World Airways, 737 F.2d 456 (Sth Cir. 1984), app. dism’d, cert. denied, 469 U.S. 1186 (1985); In re Mexico City Air Crash of October 31, 1979, 708 F.2d 400 (9th Cir. 1983); Abramson v. Japan Air- lines, 739 F.2d 130 (3d Cir. 1984), cert. denied, 470 U.S. 1059 (1985). — 17 (1st Dep’t 1978) (court applies New York choice of law rules and concludes that ‘‘[djamages . . . should be awarded in accordance with the laws of New York.’’). These decisions are supported by commentators on the Warsaw Convention.’ Clearly, the question of the type and elements of recover- able damages was left to law outside the Convention. Thus rights of action outside the Convention were not foreclosed. ‘(T]he question of the proper measure of damages is insepa- rably connected with the right of action.’’ See Chesapeake & Ohio Railway Co. v. Kelly, 241 U.S. 485, 491 (1916). Having left the issues of damages (among other issues) to local law, it is incongruous to presume that the Convention was intended to circumvent other rights of recovery under local law. G. The holding of exclusivity and preemption is contrary to accepted preemption analysis The holding, below, is contrary to accepted preemption analysis. There is a general presumption against finding pre- emption of state law in areas traditionally regulated by the States. California v. ARC America Corp., 490 U.S. 93, 101 (1989). There is nothing in the text or Convention’s drafting his- tory that suggests that the Warsaw Convention provides the 11 H. Drion, Limitation of Liabilities in International Air Law 125-6 (Martinus Nijhoff 1954) (noting that under Article 24(2), ‘‘[t]he criteria for determining the categories of recoverable damages [under the Warsaw Con- vention] and the measure of damages vary greatly from country to coun- try,’’); Miller, Liability in International Air Transport 117 (Kluwer 1977) (‘‘the issue of compensable damages is not regulated by the Convention and thus has to be governed by a law selected on the basis of the applicable choice of law rule.’’); Haanappel, The Right to Sue in Death Cases Under the War- saw Convention, 6 Air. L. 66 (1981) (recoverable damages determined by local law); N. Matte, Treatise on Air-Aeronautical Law 383, 419-20 (McGill University 1981) (Regarding the issue of damages, the author states ‘‘Given that, in each case, it is the /ex fori which will be the determining factor, it would be difficult to envisage a general rule, inasmuch as the Convention itself is not completed to this effect . . .’’). 18 exclusive right of recovery. Clearly, the Convention does not expressly foreclose state claims. Nor does the Convention so pervasively regulate any liability/damages scheme to make reasonable the inference that enforcement of state law is pre- cluded’*. Within the United States recovery for personal inju- ries and wrongful death has traditionally been an area of state legislation and regulation. The Convention was not intended to ‘‘occupy the field’’ in the realm of rights, obliga- tions and recoveries in an international air disaster, a requi- site to traditional preemption analysis. See Floyd v. Eastern Airlines, supra, 872 F.2d at 1469, rev’d on other grounds, 499 USS. , 113 L.Ed.2d 569 (1991) (‘‘the delegates at Warsaw in no way considered their work definitive’). A “‘clear and manifest’’ intent to supersede state laws in an area traditionally occupied by the states is nowhere to be found in the Convention itself, its history or in any Act of Congress. See English v. General Electric Co., 495 U.S. ___, 110 L. Ed. 2d 65, 74-75 (1990). The Second Circuit’s finding of preemption runs counter to recent decisions of this Court holding against preemption of state tort remedies. English v. General Electric Co., 495 U.S. , 110 L. Ed. 2d 65 (1990); Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984). See also California v. ARC America Corp., 490 U.S. 93, 105 (1989) (state antitrust laws not preempted; ‘‘Ordinarily, state causes of action are not pre-empted solely because they impose liability over and above that authorized by federal law’’). The holding below runs afoul of decisions of this Court which enjoin ‘‘seeking out conflicts between state and federal regulation where none exists.’’ Huron Cement Co. v. Detroit, 362 U.S. 440, 446 (1960). The decision below did just that. Preemption is not to be implied absent an ‘‘actual conflict’’ between state law and federal interests and objectives. English v. General Electric, supra, 110 L. Ed. 2d at 74, 81. Recognition of state tort causes of action in a Warsaw case would not create an ‘‘actual conflict’? with any interests 12 Indeed, the Convention’s title is ‘‘Convention for the Unification of Certain Rules relating to International Transportation by Air’’ (emphasis added), and not ‘‘all rules.’’ 19 within the limited ambit of the Convention sought to be pro- moted. H. The holding of exclusivity and preemption confuses the Convention’s creation of a cause of action with its self- contained simple liabilif. rules, as to which uniformity was prescribed. The uniformity prescribed by the Treaty does not require or even invite exclusivity of the cause of action and preemption of state law In reaching its preemption holding, the Second Circuit relied on federal preemption doctrine that state law may be preempted ‘‘when the subject matter demands uniformity vital to national interests such that allowing state regulation ‘would create potential frustration of national purposes’ ’’, quoting San Diego Building Trades Council v. Garmon, 359 U.S. 236, 244 (1959) (A18; 928 F.2d at 1275).’? Allowance of state claims for death and injuries, the court below held, would frustrate the desire for uniformity in the laws govern- ing carrier liability and the need for certainty in the applica- tion of those laws. The attempt by the court below to promote uniformity exceeds and distorts the uniformity goals sought by the draft- ers of the Convention. The title itself of the Warsaw Conven- tion; states it is a Convention for the unification of ‘‘certain rules,’’ and not all rules. As indicated above, damages are not among those rules, and have uniformly been governed by local law. In the United States damages have been determined by state law chosen through local choice of law rules. Peti- tioners believe that in both the Lockerbie and Karachi cases New York law (the place of incorporation of the principal defendant and the place of egregious corporate conduct) would apply to punitive damages. The rules of the Convention on which uniformity is pre- scribed are quite simple. Article 17 establishes that the carrier is liable. Article 20 provides that the carrier can exculpate 13 **It is under this latter doctrine that we deduce the Convention pre- empts state law causes of action.’’ Lockerbie Disaster, A18; 928 F.2d at 1275. 20 itself if it proves it took all necessary measures to prevent the damage. Article 22 places a limit on the liability of the car- rier. Article 25 provides that the carrier may not avail itself of the limit if the damage has been caused by its wilful mis- conduct. Article 28 specifies where suit may be brought. In addition, Articles 3, 4, 5, 6, and 8 establish uniformity as to documentation such as tickets and waybills. Several other articles expressly leave particular matters to local law. Article 24 (2), by providing that the Convention applies ‘‘without prejudice to the questions as to . . . what are their [plaintiffs’] respective rights,’’ provides that local law defines damages elements. Article 21 leaves the rules con- cerning contributory negligence, Article 25 leaves the defini- tion of wilful misconduct, Article 28 (2) leaves matters of procedure and Article 29 (2) leaves the method of calculating the time limitation period to the law of the court to which the case is submitted. The Court of Appeals, below, confused these simple, built- in rules, on which uniformity was intended and expressly pre- scribed, with the existence of the cause of action created by the Convention and the existence of state causes of action including those which permit punitive damages. The court said: Hence, the test to be applied is whether these goals of uniformity and certainty are frustrated by the availabil- ity of state causes of action for death and injuries suf- fered by passengers on international flights. We do not see how the existence of state law causes of action could fail to frustrate these purposes. (A18; 928 F.2d at 1275). The court was wrong. The Convention is specific as to which rules should be uniform and certain. Damages is not one of them. On the contrary they are specifically excluded from uniform treatment by Article 24 (2). The identity of the cause of action ‘‘however founded’’ is irrelevant to the iden- tity of the rules which are uniform and certain. The rules are uniform and certain irrespective of the source of the cause of action. 21 State law claims which do not attempt to circumvent War- saw’s limitations and conditions do not threaten the Conven- tion’s uniformity goals in any way. ‘‘[T]he uniformity desired by the drafters of the Convention was not complete and utter uniformity . . . By creating an exclusive remedy, the Con- vention achieved the uniformity desired while still allowing the use of state law.’’ Alvarez v. Aerovias Nacionales de Colombia, supra, 756 F. Supp. at 555; Calkins, The Cause of Action under the Warsaw Convention, supra, J. Air L. & Com. 323, 342 (1959) (‘‘The need for uniformity does not apply to the question of what constitutes ‘damage’. The Con- vention is silent on this point’’). Allowance of state claims would not stand ‘‘as an obstacle to the accomplishment and execution of the full purposes and objectives’’ of the Convention. See Hines v. Davidowitz, 312 U.S. $2, 67-68 (1941). I. The holding of exclusivity and preemption ignores the his- torical perspective in which the Convention was enacted A treaty must be read in light of the laws existing at the time of its enactment. As the Supreme Court has ruled, ‘‘the language of a treaty wherever reasonably possible will be con- strued so as not to override state laws or to impair rights under them.’’ Guaranty Trust Co. of New York v. United States, 304 U.S. 126, 143 (1938). Similarly, the Court has stated that ‘‘[nJo statute is to be construed as altering the common law, farther than its words import.’’ Robert C. Herd & Co. v. Krawill Machinery Corp., 359 U.S. 297, 304 (1959). When the Warsaw Convention was concluded in 1929 and adhered to by the United States in 1934 there were few fed- eral rights of action for wrongful death. The internal law of the United States consisted of both federal and state law. When the draftsmen left the resolution of damages issues to the local law of member nations, this necessarily invoked the laws of the states in the United States as well as the nation. Neither the Convention’s text nor history nor purposes per- mits the abrogation of state-based rights and there was no 22 enabling legislation by Congress that made federal law exclu- sive. Whatever the merits of the Second Circuit’s effort to sim- plify Warsaw litigation brought in American Courts, the fact remains that its holding is unwarranted by anything in the Convention or in any act of Congress. The holding below exceeds the uniformity established by the Convention. The Convention was not intended to eliminate all conflict of laws problems. Indeed, by resorting to local law in numerous instances, the treaty recognized the diversity of the legal sys- tems of the numerous member states which adhered to the Convention. The Convention accepted and recognized the myriad laws of its member nations, provided the elemental monetary limits of the Convention were not exceeded. The Second Circuit’s holding, below, does what the draftsmen purposefully eschewed. II CERTIORARI SHOULD BE GRANTED TO REVIEW AN INTERPRETATION OF THE TREATY THAT IGNORES ITS PLAIN LANGUAGE THAT AN EXCLUSION OF LIABILITY WILL BE DENIED TO AN AIRLINE WHEN THE DAMAGE HAS BEEN CAUSED BY ITS WILFUL MISCONDUCT Article 25 (1) of the Warsaw Convention provides: 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 miscon- duct 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. The district court, below, in Karachi Hijacking correctly held that that language ended any debate about whether the Convention excluded punitive damages. The district court said: 23 Therefore, to the extent that Article 17 is construed to preempt a claim for punitive damages, it would be a limitation or exclusion of liability within the meaning of Article 25, and such claims would not be barred in cases involving wilful misconduct. (C4, 729 F. Supp at 20). In Chan v. Korean Air Lines, supra, 490 U.S. 122, 134, (1989), also involving the Warsaw Convention, this Court said: We must thus be governed by the text . . . whatever conclusions might be drawn from the intricate drafting history . . . But where the text is clear. . . we have no power to insert an amendment. Certiorari should therefore be granted to review the hold- ing below in which the Court of Appeals fails to give the Convention its clear meaning. The court below struggles with the point at 928 F.2d 1285-1287, but cannot answer it. At 1285 it says ‘‘{[wJe conclude that Article 17 is not one of the limitations or exclusions to which Article 25 refers.’’ But Article 25 doesn’t specify particular exclusions or limitations. As the district court said in Karachi Hijacking any provision in the Convention which excluded or limited liability would be barred by wilful misconduct. The Court of Appeals below says, ‘‘we think lifting the monetary limit on compensatory damages is the Convention’s sole response to willful misconduct . . .”’ (A44; 928 F.2d at 1285). But that is obviously not what the plain language of Article 25 says. That-plain language dictates that any exclu- sion or limitation of liability is lost to the carrier if the dam- age was caused by its wilful misconduct. 24 Ill CERTIORARI SHOULD BE GRANTED BECAUSE THE DECISION BELOW CONFLICTS WITH DECISIONS OF THIS COURT WHICH UPHOLD COMMON LAW PUNI- TIVE DAMAGES AND BECAUSE IT MISCONSTRUES A TREATY WHICH WAS NOT INTENDED TO EXTIN- GUISH COMMON LAW RIGHTS EXCEPT AS SPECIFI- CALLY STATED Given this Court’s recent decisions on punitive damages, certiorari should be granted to review whether the Warsaw treaty bars the award of punitive damages when allowed under American common and statutory law. A. A punitive damages bar conflicts with recent decisions of this Court which uphold common law punitive damages and consider common law tradition as part of Warsaw’s background Four recent decisions of this Court upheld common law punitive damages and rejected claims that the Constitution or federal statutes bar punitive awards. Pacific Mutual v. Haslip, 499 U.S. ____, 113 L. Ed. 2d 1, 111 S. Ct. 1032 (1991) (Fourteenth Amendment of the Constitution); Browning-Ferris v. Kelco Disposal, 492 U.S. 257 (1989) (Eighth Amendment of the Constitution); Si/kwood v. Kerr- McGee, 464 U.S. 238 (1984) (Atomic Energy Act); Smith v. Wade, 461 U.S. 30, 36 n. 5 (1983) (Civil Rights Act). The Warsaw Convention does not bar punitive damages any more than they do. As this Court observed in Haslip: [T]he common-law method for assessing punitive dam- ages was well established before the Fourteenth Amend- ment was enacted. Nothing in that Amendment’s text or history indicates an intention on the part of its drafters to overturn the prevailing method. 113 L. Ed. at 20. These decisions recognize punitive damages as a long estab- lished and integral part of tort remedies in common law 25 countries. Pacific Mutual v. Haslip, 113 L. Ed. 2d at 18-20 (common law punitive damages have existed in England and the United States for over two hundred years). Browning- Ferris v. Kelco Disposal, 492 U.S. at 278 n 24 (punitive dam- ages are a principle of ‘‘long standing’’ in the United States). This Court has also ruled that a treaty may not overturn existing common law remedies absent clear and express lan- guage. Guaranty Trust v. United States, 304 U.S. 126, 143 (1938); see, Robert C. Herd & Co. v. Krawill Machinery, 359 U.S. 297, 304 (1959) (‘‘No statute is to be construed as alter- ing the common law, farther than its words import.’’); Trans World Airlines v. Franklin Mint, 466 U.S. 243, 252 (1984) (the treaty’s monetary damage limit could not be overturned in the face of ‘‘ambiguous congressional action . . .”’ and ‘*[legislative silence’’). No treaty provision bars punitive damages. The court below acknowledged that ‘‘the Convention is silent on this subject’’ (A6; 928 F.2d at 1270, infra). Moreover, Article 24 refers damages issues to local law. See Section II F., infra. This Court recently held that common law should be con- sidered in interpreting the Warsaw Convention. Eastern Air- lines v. Floyd, 499 U.S. , 113 L. Ed. 2d 569, 583 (1991) (Court relied on ‘‘the unavailability of compensation for purely psychic injury in many common and civil law coun- tries at the time of the Warsaw Conference’’). The treaty was drafted with common law participants England and Australia, and with the United States present as an observer. Common law punitive damages were recoverable in England and Australia, along with the United States, for many years prior to and at the time of the 1929 Convention. Pacific Mutual v. Haslip, 113 L. Ed. 2d at 18-20, 24-25; Browning-Ferris v. Kelco Disposal, 492 U.S. at 278, n.24. Given that the treaty was drafted to apply in common law as well as civil law countries, it was unreasonable for the Sec- ond Circuit to conclude that- Warsaw’s drafters intended a punitive bar absent a specific provision. Indeed, the court below ignored basic principles of construction by ascribing to Warsaw’s drafters an intent to bar punitive damages because of their silence on the subject. Thus, the Second Circuit said a es 26 that ‘‘[t]he drafters’ silence on this subject leads logically to the assumption that punitive damages were not addressed because they were never contemplated.’’ (A41; 928 F.2d at 1284). The conclusion is not warranted. B. Article 24 preserved common law punitive damage awards The drafters of the Convention were unsuccessful in reach- ing agreement on uniform damage elements. International Conference on Private Aviation Law (Paris 1926) (‘‘it is impossible to set in a single formula the various legal con- cepts of the various States . . .’’); Report of Henri DeVos, CITEJA Reporter (September 1928), translated and reprinted in Second International Conference on Private Aeronautical Law, p. 255 (R. Horner & D. Legrez trans. 1975) (hereinafter Warsaw Minutes) (CITEJA concluded that ‘‘[i]t was not pos- sible to find a satisfactory solution’’ to the question of what damages are ‘‘subject to reparation’? and agreed that the issue ‘‘should be regulated independantly from the present Convention.’’). Article 24 provided that the Convention applied ‘‘without prejudice’’ to the ‘‘respective rights’’ of the plaintiffs: any action for damages, however founded, can only be brought subject to the conditions and limits set out in this convention . . . without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights. (Emphasis added). The ‘‘rights’’ preserved by Article 24 are the elements of damages. See Section II(F), supra. The court below conceded that pursuant to Article 24 ‘‘the Convention leaves the measure of damages to the internal law of parties to the Convention’’. (A37; 928 F.2d at 1283). Nev- ertheless, the court failed to apply the Convention’s ‘‘without prejudice’’ to plaintiffs’ ‘‘rights’’ provision to common law punitive damages. The only uniform damages provision was the treaty’s cen- tral limitation provision: Article 22’s monetary limitation. The drafters were satisfied to leave damages questions to 27 local law, provided that ‘‘any action for damages, however founded . . .’’ were subject to the treaty’s monetary damage limit. Drion, Limitation of Liability in International Air Law, 135-6 (Martinus Nijhoff 1954); Calkins, The Cause of Action under the Warsaw Convention, 26 J. Air L. & Com. 323, 342 (1959) (‘The need for uniformity does not apply to the question of what constitutes ‘damage.’ The Convention is silent on this point.’’). The decision below establishes a non-uniform double stan- dard. The damage awards of common law plaintiffs are restricted.'* But plaintiffs in civil law nations may recover all available local law damages, including moral damages, which encompass a punitive element since they are based in part on the defendant’s degree of fault. International Encyclopedia of Comparative Law, Vol. XI, pp. 9-11-9-13; Mazeaud & Tunc, Traité de la Responsibilité Civile 391, 396 (Sth Edition 1957) (in France, moral damages are recoverable, and one factor in setting the award is the defendant’s degree of fault); Tunc & McGregor, Jnternational Encyclopedia of Comparative Law, Vol. XI, pp. 9-12-9-13 (under German law, the tortfeasor’s degree of fault is routinely considered to increase compensa- tory damage awards.). C. Article 17 establishes the conditions for airline liability and does not bar punitive damages Article 17 provides that ‘‘[t]he carrier shal] be liable for damage sustained in the event of death . . . of a passenger . . . but does not define recoverable damages. Miller, Lia- bility in International Air Transport 125 (Kluwer 1977) (‘‘Article 17... did not purport to regulate the type of damage which could be compensated.’’); Haanappel, The Right to Sue in Death Cases under the Warsaw Convention, 14 Warsaw signatories Australia, Canada and the United States allow the recovery of common law punitive damages without limitation. Browning-Ferris v. Kelco Disposal, 492 U.S. at 273 n.18 (1989). In 1964, thirty-five years after the Warsaw Conference, England imposed restrictions on punitive damages, but did not completely bar recovery. Ibid. Rookes v. Barnard, (1964] A.C. 1129, 1 All E.R. 367 (H.L.). 28 6 Air. L. 66 (1981) (‘‘the Convention provides neither for a substantive rule of law nor for a choice of law rule. . . for the meaning of the word ‘damage’ in Article 17. . .’’). The purpose of Article 17 was to establish the conditions precedent which trigger an airline’s liability under the Con- vention. Air France v. Saks, supra, 470 U.S. at 397 (‘‘Article 17 establishes the liability of international air carriers for harm to passengers’’). These conditions are: the death, wounding or bodily injury to a passenger; an accident which caused the damage; and such accident taking place on board the aircraft or in the course of aay of the operations of embarking or disembarking. Once Article 17’s conditions are met, ‘‘the carrier’s liability is engaged’’ and ‘‘the normal rules governing damages apply; they have not been affected by the Convention.’’ Miller, Liability in International Air Transport 125-6 (Kluwer 1977). The Second Circuit, below, held that Article 17’s imposi- tion of liability on airlines for ‘‘damage sustained’’ consti- tuted a punitive damage bar because ‘‘Article 17 contemplates monetary or compensatory damages only’’ (A32; 928 F.2d at 1281). But Article 17 is affirmative, grant- ing the passenger a quid pro quo for the treaty’s monetary damage limit. The text does not suggest that Article 17 favored the carrier with a punitive damage bar. Indeed, in the discussions at the Warsaw Conference and CITEJA meetings concerning Article 17 and its predecessor articles, no mention was ever made of specifying, confining or eliminating any damage element. Warsaw Minutes, supra at 166-7, 255. In fact, in Smith v. Wade, 461 U.S. 30 (1983), this Court rejected similar arguments that the phrase ‘‘for redress’’ in 42 U.S.C. § 1983 ‘‘means that Congress intended to limit recov- ery to compensatory damages.’’ Jd. at 36, n.5. This Court found such a construction was ‘‘strained’’ and ruled that punitive damages were recoverable under the statute. J/bid. Likewise, in Silkwood v. Kerr-McGee, 464 U.S. 238 (1984), this Court rejected claims that the Atomic Energy Act, which imposed a monetary cap on recoveries against nuclear plant operators, barred state law punitive damages. 29 Similarly this Court should reverse the decision below inso- far as it reads into the words ‘‘damage sustained’’ a bar of punitive damages. IV CERTIORARI SHOULD BE GRANTED BECAUSE IMPORTANT QUESTIONS OF TREATY INTERPRETA- TION ARE INVOLVED This Court has recognized the importance of issues involv- ing treaty interpretation in its certiorari decisions including numerous cases involving the Warsaw Convention itself. This Court has said: The object of our granting writs of certiorari on points of statutory or treaty interpretation is to determine the correctness of fundamental points that lower courts have resolved .... Chan v. Korean Air Lines, 490 U.S. 122, 134 n.5 (1989) (interpretation of Warsaw Conven- tion). We granted certiorari . . . to interpret this important treaty provision. . . . State of Washington v. Washing- ton State Commercial Passenger Fishing Vessel Ass’n., 443 U.S. 658, 674 (1979) (treaties relating to fisheries). We granted certiorari because the cases involve impor- tant rights asserted in reliance upon federal treaty obli- gations. Kolovrat v. Oregon, 366 U.S. 187, 191 (1961). Certiorari has been granted to review interpretations of the Warsaw Convention. Eastern Airlines v. Floyd, 499 U.S. ___., 113 L. Ed. 2d 569, 111 S. Ct. 1489 (1991); Chan v. Korean Air Lines, 490 U.S. 122, 127 (1989); Air France v. Saks, 470 U.S. 392 (1985); Trans World Airlines v. Franklin Mint Corp., 466 U.S. 243 (1984); Lisi v. Alitalia, 390 U.S. 455 (1968). This Court has also recognized the importance of punitive damages in granting certiorari. City of Newport v. Facts Concerts Inc., 453 U.S. 247, 255, 257 (1981). CONCLUSION Certiorari should be granted to address the conflict among the courts on the issue of preemption of state causes of action by the Warsaw Convention and to address important questions of treaty interpretation coacerning the recoverabil- ity of punitive damages in an action governed by the Warsaw Convention when allowed under local law. Respectfully submitted, PLAINTIFFS’ STEERING COMMITTEE Karachi Hijacking MARC S. MOLLER Lead Counsel KREINDLER & KREINDLER 100 Park Avenue New York, New York 10017 (212) 687-8181 Daniel C. Cathcart Wm. Marshall Morgan On the Petition: LEE S. KREINDLER MARC S. MOLLER STEVEN R. POUNIAN JAMES P. KREINDLER DANIEL M. KOLKO PLAINTIFFS’ COMMITTEE Lockerbie Disaster LEE S. KREINDLER Chairman and Counsel of Record KREINDLER & KREINDLER 100 Park Avenue New York, New York 10017 (212) 687-8181 Michel F. Baumeister Richard E. Brown Stanley M. Chesley Nicholas Gilman Frank H. Granito, Jr. APPENDIX INDEX TO APPENDIX PAGE Opinion of Court of Appeals for the Second Circuit dated March 22, 1991 and reported at 928 F.2d 1267 Sere reer rer err reer eer eee Te Al ) Memorandum Opinion and Order of United States Dis- trict Court for the Eastern District of New York dated January 3, 1990 and reported at 733 F. Supp. ES Tee TTT TTT eT ToT TT eee Bl Memorandum Opinion and Order of United States Dis- trict Court for the Southern District of New York dated January 18, 1990 and reported at 729 F. Supp. es UNS 5 a6 dev oy Boe 84 0a oO ee Cl ) Order of Court of Appeals for the Second Circuit EO OO vk ad ne chee hee be baaneaceeeud D1 | Judgment of Court of Appeals for the Second Circuit 2h. BOE 6 cos cosa kb ees dk eae da we ed os El Al UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Se No. 269—August Term 1990 (Argued October 1, 1990 Decided March 22, 1991) Docket No. 90-7388 — IN RE: AIR DISASTER AT LOCKERBIE, SCOTLAND ON DECEMBER 21, 1988 DENICE- H. REIN, et al., Plaintiffs-A ppellants, a PAN AMERICAN WORLD AIRWAYS INCORPORATED, Defendant-A ppellee. > No. 460—August Term 1990 (Argued October I, 1990 Decided March 22, 1991) Docket No. 90-7636 > IN RE: HIJACKING OF PAN AMERICAN WORLD AIR- WAYS, INC. AIRCRAFT AT KARACHI INTERNA- TIONAL AIRPORT, PAKISTAN ON SEPTEMBER 5, 1986 A2 DILIP JOSHI, NADYA HUSSAIN, TAHRA LODHI, DILIP PARIKH, FARAIDOON OSHTORY, et al., Plaintiffs-A ppellees, —_—yV.— PAN AMERICAN WORLD AIRWAYS, INC., Defendant-A ppellant. Before: CARDAMONE and MINER, Circuit Judges and POLLACK, District Judge* — Pan American World Airways, Inc., appeals from the January 18, 1990 memorandum opinion and order of United States District Court for the Southern District of New York (Sprizzo, J.) denying partial summary judg- ment on defendant Pan American’s motion to dismiss plaintiffs’ claims for punitive damages. Reversed and punitive damages claims dismissed. Denice Rein, et al. appeal from the January 3, 1990 memorandum opinion and order and from the February 26, 1990 memorandum of the United States District Court for the Eastern District of New York (Platt, C.J.) granting partial summary judgment in favor of defen- dant Pan American World Airways, Inc., and dismissing plaintiffs’ punitive damage claims. Affirmed. — ° Honorable Milton Pollack, United States District Court for the Southern District of New York, sitting by designation. 90-7388 LEE S. KREINDLER, Chairman, Plaintiffs’ Committee, New York, New York (Steven R. Pounian, James P. Kreindler, Michael F. Baumeister, Richard E. Brown, Stanley M. Chesley, Nicholas Gilman, Frank H. Granito, Jr., Kreindler & Kreindler, New York, New York, of counsel), for Plaintiffs- Appellants. RICHARD M. SHARP, Washington, D.C. (Frederick C. Schafrick, Elizabeth M. Brown, Shea & Gardner, Washington, D.C.; James M. Shaughnessy, Windels, Marx, Davies & Ives, New York, New York; Condon & Forsyth, New York, New York, of counsel), for Defendant Appellee. James E. Landry, George S. Lapham, Jr., David A. Berg, Air Transport Associa- tion of America, Washington, D.C., filed a brief Amicus Curiae. 90-7636 LEE S. KREINDLER, Chairman, Plaintiffs’ Committee, Lockerbie Disaster, New York, New York (Steven R. Pounian, James P. Kriendler, Michael F. Baumeister, Richard E. Brown, Stanley M. Chesley, Nicholas Gilman, Frank H. Granito, Jr., Kreindler & Kreindler, New York, New York, of counsel; Marc S. Moller, Lead Counsel, Plaintiffs’ | A4 Steering Committee, Karachi Hijacking, Daniel C. Cathcart, Wm. Marshall Mor- gan, Kreindler & Kreindler, New York, New York, of counsel), for Plaintiffs- Appellees. RICHARD M. SHARP, Washington, D.C. (Frederick C. Schafrick, Elizabeth M. Brown, Shea & Gardner, Washington, D.C.; James M. Shaughnessy, Windels, Marx, Davies & Ives, New York, New York, of counsel), for Defendant- Appellant. ee CARDAMONE, Circuit Judge: A single question of law is raised on appeals from two district court orders: one involves the crash of Flight 103 over Lockerbie, Scotland; the other a hijacking in Kara- chi, Pakistan. The Lockerbie case arose from the terrorist bombing of Pan Am Flight 103 from London to New York on December 21, 1988. The surviving relatives and personal representatives of those who died sued Pan American World Airways, Inc. (Pan Am), two Pan Am subsidiary corporations that provided security services, and Pan Am’s parent corporation. All actions were consolidated in the Eastern District of New York by order of the Judicial Panel on Multidistrict Litigation. On June 2, ~ 1989 Pan Am moved for partial summary judgment on the punitive damages claims, asserting they were barred AS by the Warsaw Convention.’ For purposes of Pan Am’s motion, the district court presumed that the carrier com- mitted willful misconduct, and that the applicable local law permitted the recovery of punitive damages. On January 3, 1990 the Chief Judge of the Eastern District (Platt, C.J.) granted partial summary judgment and dis missed the punitive damages claims. On February 26, 1990 Chief Judge Platt entered a second memorandum and order denying plaintiffs’ motion for reargument, but granting certification under 28 U.S.C. § 1292(b) for immediate appeal of the case to this Court as one involving a controlling question of law. The Karachi case arose from a terrorist hijacking of Pan Am Flight 73 from Bombay, India, to New York, stopping at Karachi and Frankfurt on September 6, 1986. The surviving relatives and personal representa- tives of those killed sued Pan Am, and the actions were consolidated in the Southern District of New York by order of the Judicial Panel on Miultidistrict Litigation. The district court (Sprizzo, J.) denied Pan Am’s motion for partial summary judgment on the issue of whether Pan Am had committed willful misconduct, as well as Pan Am’s later motion for partial summary judgment seeking to dismiss plaintiffs’ claims for punitive dam- ages. None of the parties dispute that these cases are gov- erned by the Warsaw Convention and by the Montreal l Convention for the Unification of Certain Rules Relating to Interna- tional Transporiation by Air, done at Warsaw, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876, 137 L.N.T.S. 11, reprinted at 49 U.S.C. app. § 1502 note, Warsaw Convention (1988). eT Accord.’ The issue presented is independent of any fac- tual situation. We must decide whether a plaintiff may state a claim for punitive damages in a wrongful death action governed by the Warsaw Convention, assuming the carrier committed willful misconduct. Although the Convention is silent on this subject and the lack of legis- lative materials addressing the issue makes interpreting the Convention’s effect on punitive damages claims dif- ficult, we are persuaded that the purposes for which the Convention was created are not consistent with an award of punitive damages. Thus, we hold that these plaintiffs may not recover such damages. So much has been written concerning the Convention Since its adoption over 50 years ago that we must take care not to get lost in a wilderness of words. To that end we think it helpful to set forth the analytical frame- work for the discussion that follows. We discuss first the Convention’s purposes, structure and history. (I). Then, in order to clearly identify what the term ‘‘puni- tive damages’’ means in the context of our consideration of the Convention, we focus analysis by exploring ini- tially the role of punitive damages in American law gen- erally, examining the nature of the recovery permitted under state and federal law; and, after that, by deciding whether the Convention provides an exclusive cause of action or whether it permits separate state law actions claiming punitive damages. (II). We conclude that the 2 Agreement Relating to Liability Limitations of the Warsaw Conven- tion and Hague Protocol, Agreement CAB 18900, Approved by Execu- tive Order E-23680, May 13, 1966 (Docket 17325) (1966), reprinted in Civil Aeronautics Board, Aeronautical Statutes and Related Materia! 515-16 (1974) (Montreal Agreement). The Montreal Agreement raised the amounts recoverable under the Warsaw Convention and its Proto- cols for passengers on international flights with departure or destina- tion points in the United States to $75,000. A7 Convention preempts state causes of action because dif- ferences in the various state laws—some of which view punitive damages as penal in nature, some compensa- tory, and some both—would introduce such great confu- sion into this subject as to destroy any hope of uniformity in applying the Convention. The Convention therefore bars state wrongful death actions in cases aris- ing under it. (III). We next hold that because air carrier liability is a uniquely international problem requiring uniform inter- pretation, the Convention must be interpreted according to federal common law. We adopt the federal common law of torts to construe the Convention and determine that federal common law does not contemplate a com- pensatory element in a punitive damages claim. (IV). Having identified the governing law and the nature of punitive damages potentially available under that law, we turn to the Convention to see whether it allows for the kind of punitive damages available to plaintiffs under federal iaw. Our analysis of the Convention reveals that Article 17 did not contemplate air carrier liability for that type of punitive damages; Article 24 does not preserve such liability under local law; and the Convention does not permit the sort of punitive dam- ages available under federal law to be awarded, even when the liability limitations are lifted under Article 25 in cases of willful misconduct. (V). Finally, we believe policy considerations that led the various contracting parties to adhere to the Warsaw Convention strongly militate against recognition of punitive damages. (VI). A8 I PURPOSES, STRUCTURE AND HISTORY OF THE WARSAW CONVENTION The Warsaw Convention was drafted when the airline industry was in its infancy. It was the product of two international conferences—the first held in Paris in 1925 and the second in Warsaw in 1929—and four years of work by the interim Commité International Technique d’Experts Juridique Aériens (CITEJA) formed at the Paris Conference. The Convention had two primary goals: first, to establish uniformity in the aviation indus- try with regard to ‘“‘the procedure for dealing with claims arising out of international transportation and the substantive law applicable to such claims,’’ as well as with regard to documentation such as tickets and waybills; second—clearly the overriding purpose—to limit air carriers’ potential liability in the event of acci- dents. Lowenfeld & Mendelsohn, The United States and the Warsaw Convention, 80 Harv. L. Rev. 497, 498-99 (1967) (Lowenfeld & Mendelsohn); Block v. Compagnie Nat’! Air France, 386 F.2d 323, 327 (Sth Cir. 1967), cert. denied, 392 U.S. 905 (1968). The liability limit was believed necessary to allow air- lines to raise the capital needed to expand operations and to provide a definite basis upon which their insur- ance rates could be calculated. Lowenfeld & Men- delsohn, at 499-500; H. Drion, Limitation of Liabilities in International Air Law 16 (1954) (Drion, Limitation of Liabilities); Floyd vy. Eastern Airlines, Inc., 872 F.2d 1462, 1467 (llth Cir. 1989), cert. granted, 110 S. Ct. 2585 (1990). The nations drafting this provision had a direct interest in establishing liability limits since nearly all existing airlines were either owned or heavily subsi- dized by the various contracting states. The drafters also A9 believed that a liability limit would lessen litigation. Sen. Comm. on For. Relations, Message from the President of the United States Transmitting a Convention for the Unification of Certain Rules, Sen. Exec. Doc. No. G, 73d Cong., 2d Sess. 3-4 (1934) (Secretary of State Cor- dell Hull). To effect these purposes, the Convention adopted a trade-off between carriers and their passengers: passen- gers would have the absolute right to compensation for injuries up to 125,000 Poincare francs, (Articles 17, 22(1)), unless the carrier could prove it had taken all necessary measures to avoid the damages (Article 20(1!)). Passengers could claim no damages above the 125,000 franc limit unless they demonstrated that the carrier had engaged in willful misconduct, in which case the Con- vention’s limits on carrier liability would be lifted (Articie 25). While later agreements such as the 1966 Montreal Accord somewhat modified this scheme, so that in some cases the liability limit is higher and the carrier may no longer raise the defense that it took all necessary measures, see Lowenfeld & Mendelsohn at 596-600, the basic structure of the Convention remained the same. The Convention entered into force in February, 1933 and by the end of that year most European nations were members. Although the United States had not partici- pated in the work of CITEJA and only sent an observer to Warsaw, it moved quickly thereafter, depositing its instrument of adherence on July 31, 1934. President Roosevelt proclaimed the Treaty 90 days later. Lowen- feld & Mendelsohn, at 501-02. The nature of the Convention can be identified to some extent from the fact that the Convention’s struc- Al0 ture clearly derives from the civil law of contracts. Calkins, The Cause of Action Under the Warsaw Con- vention, 26 J. Air L. & Com. 217, 223 (1959) (Calkins, The Cause of Action). The liability regime established by the Convention is very similar to the French law of © contractual liability for domestic carriers. G. Miller, Liability in International Air Transport 234 (1977). For example, the French law of contract implies a ‘‘stipula- tion pour autrui’’ in contracts of carriage, allowing a decedent’s relatives to bring an action in damages against the carrier without having to prove the carrier’s negligence, but subjecting the plaintiffs to any limitation or exclusion clauses contained in the contract. Jd. at 236-37; A. Lowenfeld, Aviation Law § 1.52, at 7-17. German law is similar. Jd. § 1.53, at 7-21 to -23. Article 25 of the Convention, which lifts the liability limitation in cases of willful misconduct, also derives from the basic civil law principle that ‘‘{n]o one can escape the consequences of one’s dol, or intentional fault.’’ Miller, Liability in International Air Transport at 73. This principle was often ‘‘extended to cases of gross negligence (faute lourde),’’ id., and the Conven- tion deliberately allows common law countries to subject air carriers to unlimited liability in cases of willful mis- conduct. Jd. at 80. Before turning to the text of the Convention, we direct our attention to the role of puni- tive damages in American law in order to identify clearly what kinds of damages the Warsaw Convention might bar. II PUNITIVE DAMAGES IN AMERICAN LAW The parties in the suits before us contend ihat puni- tive damages are everything from damages meant to 5 i $ 7 4 All compensate certain types of injuries to damages meant purely to punish the tortfeasor. To explore fully the nature of the recovery permitted under state and federal law, we must keep in mind that punitive damages derive their meaning depending on whether federal law or a given state law, such as Massachusetts, New Hampshire or Connecticut, governs. Here the plaintiffs in each case “have asserted both federal and state law causes of action. Punitive damages have historically played a role in the ’ American common law of tort. See Smith v. Wade, 461 U.S. 30, 35 & n.3 (1983); Belli, Punitive Damages: Their History, Their Use and Their Worth in Present-Day Society, 49 UMKC L. Rev. 1 (1980) (Belli, Punitive Damages). In the early case of Day v. Woodworth, 54 U.S. (13 How.) 363 (1851), the Supreme Court recog- nized the existence and propriety of punitive damages, noting that it could ‘‘inflict what are called exemplary, punitive, or vindictive damages upon a defendant, hav- ing in view the enormity of his offence rather than the measure of compensation to the plaintiff.’’ Jd. at 370- 71. Punitive damages have had a hazy history— sometimes used to punish, and sometimes used to compensate a plaintiff for injuries to pride, dignity, or reputation that would not otherwise be compensated through traditional tort awards intended to make a plaintiff whole. Today the Supreme Court views puni- tive damages as penal rather than compensatory. See Browning-Ferris Indus. v. Kelco Disposal, Inc., 109 S. Ct. 2909, 2932 (1989) (O’Connor, J., concurring, in part, and dissenting, in part) (citing numerous Supreme Court cases recognizing the penal nature of punitive damages). It has characterized these damages as private fines used to punish a defendant’s reprehensible conduct Al2 and to deter its repetition. See International Bhd. of Elec. Workers v. Foust, 442 U.S. 42, 48 (1979). Lower federal courts and a majority of state courts have also held that punitive damages are penal, rather than compensatory, in nature. See Floyd, 872 F.2d at 1486 (‘‘Punitive damages are intended to penalize the wrongdoer in order to benefit society’’); Harpalani v. Air-India, Inc., 634 F. Supp. 797, 799 (N.D. Ill. 1986) (purpose of punitive damages is to punish and deter); Andor v. United Air Lines, Inc., 303 Or. 505, 511-13, 739 P.2d 18, 22-23 (Or. 1987) (aim of punitive damages is punishment, deterrence of defendant and others from engaging in tortious conduct, and vindication of social norms). See also, Restatement_(Second) of Torts § 908 (punitive damages are ‘‘damages, other than compensa- tory or nominal damages, awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future’’); Kenney, Punitive Damages in Aviation Cases: Solving the Insurance Coverage Dilemma, 48 J. Air L. & Com. 753, 755 (1983). A minority of state courts view punitive damages as serving a compensatory function. See Peisner v. Detroit Free Press, 242 N.W.2d 775, 780 (Mich. Ct. App. 1976) (purpose of punitive damages not to punish defendants but ‘‘to fully compensate the plaintiffs for the injury suffered by them because of the defendants’ actions’’); Kelsey v. Conn. State Employees Ass’n., 427 A.2d 420, 425 (Conn. 1980); Bixby v. Dunlap, 56 N.H. 456 (N.H. 1876); Eshelman v. Rawalt, 131 N.E. 675, 677-78 (Ili. 1921); Belli, Punitive Damages, at 6. These damages are either given ‘‘on the theory that the injury is greater, and the actual damages are increased, by reason of the Pier iain. Al3 aggravating circumstances’’ of the tort or to compensate the plaintiff for litigation costs. 22 Am. Jur. 2d Dam- ages § 735 (1988). This view of punitive damages existed in New Hampshire and Michigan when the United States first adhered to the Warsaw Convention in 1934. In some states, ‘‘exemplary damages may properly partake of both a punitive and a compensatory charac- ter.”’ Id. § 733; C. McCormick, Damages, § 78, at 279 (1935). We noted, for example, in Racich v. Celotex Corp., 887 F.2d 393, 397 (2d Cir. 1989), that New York has viewed punitive damages ‘‘as having a purpose beyond punishment, ‘afford[ing] the injured party a per- sonal monetary recovery over and above compensatory loss.’ ’’ Id., citing Wittman vy. Gilson, 70 NY2d 970, 972 (1988). III PREEMPTION OF STATE LAW CAUSES OF ACTION It follows from the preceding discussion that were we to hold that plaintiffs could bring state law causes of action, then such a cause of action for punitive darnages would sometimes include a compensatory element. On the other hand, if the federal cause of action is exclu- sive, then we would look to federal law to decide whether that body of law—which generally recognizes no compensatory element in punitive damages claims— would allow such a claim. A. Current Second Circuit Law We have left open the question of whether state causes of action are still available under the Convention. As the law in this Circuit now stands, we have ruled Al4 that the Warsaw Convention creates a cause of action enabling a plaintiff to sue directly under its terms. See Benjamins v. British European Airways, 572 F.2d 913, 919 (2d Cir. 1978), cert. denied, 439 U.S. 1114 (1979). This holding reversed prior cases that had held the Con- vention created only a presumption of liability, not a cause of action. See Komlos v. Compagnie Nationale Aire France, 209 F.2d 436 (2d Cir. 1953), cert. denied, 348 U.S. 820 (1954); Noel v. Linea Aeropostal Venezo- lana, 247 F.2d 677 (2d Cir.), cert. denied, 355 U.S. 907 (1957). Benjamins left open the question of whether state causes of action were still available under the Conven- | tion, and only two of our cases have touched on this subject. See In Re Air Crash Disaster at Warsaw, Poland, on March 14, 1980, 705 F.2d 85 (2d Cir.) (affirming on other grounds district court decision that regarded the cause of action under the Convention as exclusive, without discussing exclusivity issue), cert. denied, 464 U.S. 845 (1983); cf. Tokio Marine & Fire Ins. Co. v. McDonnell Douglas Corp., 617 F.2d 936, 941-42 (2d Cir. 1980) (postulating in dicta that action under the Convention might not be exclusive). The Supreme Court has declined to address the question of exclusivity. See Air France v. Saks, 470 U.S. 392, 408 (1985). We consider the issue an open question. B. Preservation and Preemption The issue is not whether the Convention preempts state laws with which it is in direct conflict, as it obvi- ously must under the Supremacy Clause of the United States Constitution. See U.S. Const. art. VI. Nor is it whether a plaintiff may bring a state cause of action Al5 when the claim does not arise under the Warsaw Con- vention, which a plaintiff plainly may institute. See Abramson v. Japan Airlines Co., 739 F.2d 130, 134 (3d Cir. 1984), cert. denied, 470 U.S. 1059 (1985): Tokio Marine, 617 F.2d at 941-42. Instead, the question we must decide is whether state causes of action are pre- empted when the state claim alleged falls within the scope of the Convention. The answer to the question we believe is ‘‘yes’’, for several reasons. To begin with, although neither the Convention itself nor any Congressional action at the time the United States adhered to the Convention expressly preempted state law, Boehringer-Mannheim Diagnostics, Inc. v. Pan American World Airways, Inc., 737 F.2d 456, 459 (Sth Cir. 1984), cert. denied, 469 U.S. 1186 (1985), vari- ous authorities support our conclusion that the Conven- tion itself does not expressly preserve state law causes of action either. The question of whether the Convention provides the exclusive liability remedy for international air carriers by providing an independent cause of action, or whether state law causes of action are preserved under the Con- vention has been addressed by several courts. In Boehringer-Mannheim, the Fifth Circuit held the Con- vention cause of action is exclusive. Jd. at 458. Without in-depth analysis, the court ruled that Texas law was preempted, pointing out that an ‘‘obvious major pur- pose of the Warsaw Convention was to secure uniform- ity of liability for air carriers,’’ and that uniformity has national as well as international application. Jd. at 459. The Ninth Circuit has also rebutted the idea that a cause of action may be founded on some law other than the Convention, stating: ‘‘Such causes of action might, con- Al6 sistently with the Convention, provide varying measures of damages or varying specifications of persons entitled to recover.’’ In Re Mexico City Aircrash of October 31, 1979, 708 F.2d 400, 414 n.25 (9th Cir. 1983). Other contracting parties have also concluded that the Convention cause of action is exclusive. French courts, for example, have so decided. See Miller, Liability in International Air Transport at 237 (French court held plaintiffs could not avoid liability limits by renouncing contractual rights and suing under a negligence theory). In addition, England, Canada, and Australia have all enacted implementing statutes that make an Article 17 action the exclusive remedy for claims governed by the Convention. Carriage by Air Act, 1932, 22 & 23 Geo. 5, ch. 36, § 1(4) (England); Civil Aviation (Carrier’s Liabil- ity) Act, 1959-1973, § 12(2), 2 Austi.-Acts P. 643, 645 (1974) (Australia); Carriage by Air Act, § 2(5), Can. Rev. Stat., ch. C-26 (1979) (Canada). It is significant that Australia and Canada are federal states, though Canada has ‘‘an essentially unified judi- cial system,’’ but that these Acts have eliminated the choice of law problems with which American courts have struggled. Miller, Liability in International Air Transport at 228-31. Further, other countries’ interpre- tations of the Convention are ‘‘entitled to considerable weight’’ by this Court. See Benjamins, 572 F.2d at 919; see also Chan v. Korean Airlines, Ltd, 109 S. Ct. 1676, 1683 (1989); Saks, 470 U.S. at 396-97; Reed v. Wiser, 555 F.2d 1079, 1083 (2d Cir.), cert. denied, 434 U.S. 922 (1977). Plaintiffs argue that, by use of such phrases as ‘‘the law of the court to which the case is submitted,’’ Article 25 (limitations of liability lifted in cases of willful mis- ET Al7 conduct); see Article 21 (contributory negligence), Article 22 (periodic payments), Article 28 (procedural questions), and Article 29 (calculation of statute of limi- tations), the Convention left certain matters such as the elements of damages to local law, by which the plain- tiffs mean state law. Without delving too deeply into the Convention at this point, we see no reason to believe that the drafters meant to denote the laws of subdivi- sions within nations. See Mertens v. Flying Tiger Line, Inc., 341 F.2d 851, 855 (2d Cir.) (‘‘The basic unit of international law is the nation-state and it is fair to assume, absent clear indications to the contrary, that [the Convention] was written with reference to nation- States, not to areas and subdivisions of nation-states.’’), cert. denied, 382 U.S. 816 (1965). As Professor Miller points out, our ‘‘highly complex structure of political and judicial jurisdictions . . . is specific to the United States.’’ Miller, Liability in International Air Transport at 232. The fact that Australia and Canada, the two nations whose law is closest to our own, have applied a single substantive law to actions under the Convention supports our view that the Convention does not preserve any state law causes of action. We therefore decline to read into the Convention any attempt to preserve a right to a state law cause of action in addition to the action provided under the Convention itself. The way the other parties have viewed the Con- vention, its emphasis on uniformity, and the need for a single, unified rule on such points as the recoverability of punitive damages lead to the belief that the Conven- tion should be interpreted as making all actions—other than those not based on the Convention—exclusive under it. Al8 The next question to be answered is whether, if such State law causes of action are not preserved by the Con- vention, they are in fact preempted by the Convention. The Supreme Court has set forth several routes by which state law may be preempted. Congress may, of course, expressly preempt state law, or it may enact a scheme of federal legislation so pervasive that a court may infer Congress left no room for the states to legis- late in the area. See Schneidewind v. ANR Pipeline Co.., 485 U.S. 293, 299-300 (1988); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). It may also preempt state law when the subject matter demands uniformity vital to national interests such that allowing state regula- tion ‘‘would create potential frustration of national pur- poses.”’ San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244 (1959); see Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 144 (1963). It is under this latter doctrine that we deduce the Convention preempts state law causes of action. The principal purposes that brought the Convention into being and presumably caused the United States to adhere to it were a desire for uniformity in the laws gov- erning carrier liability and a need for certainty in the application of those laws. See Reed, 555 F.2d at 1090; Sen. Exec. Doc. No. G, 73d Cong. 2d Sess. 3-4 (1934) (Comments of Secretary of State Hull), supra. Hence, the test to be applied is whether these goals of uniform- ity and certainty are frustrated by the availability of state causes of action for death and injuries suffered by passengers on international flights. We do not see how the existence of state law causes of action could fail to frustrate these purposes. Al9 C. Implications of Allowing State Law Causes of Action Any attempt to construe the meaning of punitive damages under the laws of various states may easily become mired down in a morass of conflicting rules. As an illustration, it is settled law that when a plaintiff brings a state wrongful death claim based on diversity jurisdiction, a federal court must apply the choice of law rules of the district in which the court sits, and then the substantive law of the applicable state. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938); Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941). An asser- tion of diversity jurisdiction could result in the inconsis- tent application of law to the claims before us. Assume the Convention barred punitive damages meant to pun- ish the defendant, but not those meant to compensate the plaintiff for the additional injury stemming from the senselessness of the accident. If a plaintiff were allowed to bring a state law cause of action, the trial court’s choice of law analysis might compel it to apply the law of a state holding the minority view of punitive damages SO as to include a compensatory element. In such event, the compensatory element in the punitive damage claim might not be allowed in a case choosing the law of another state. In fact, it is quite conceivable that a trial court would be forced to apply differing law from sev- eral states to various plaintiffs. Further, neither the choice of law rules nor the sub- Stantive law itself could be predicted with any certainty. An airline’s liability could therefore vary widely depend- ing on where the plaintiff resided or chose to sue— under Article 28 a suit may be brought in a court where the carrier is domiciled or has a principal place of busi- A20 ness, Or where the carrier has a place of business through which the contract was made or before a court at the place of destination. Additionally, the existence of state law causes of action would make the application of law to the federal cause of action created by the Convention even more complex. If the Convention did not bar a compensatory element in a punitive damages claim under state law, then in those cases involving federal claims as well as diversity claims entailing the minority view of punitive damages, the federal law would differ from the state law, within the same case in federal court. This would present the further problem of whether the trial court should allow a plaintiff to choose between state and fed- eral causes of action. Cf. Rhymes v. Arrow Air, Inc., 636 F. Supp. 737, 741-42 (S.D. Fla. 1986) (when plain- tiff had option to plead Warsaw Convention cause of action but pleaded only state cause of action in state court, defendants could not remove action to federal court by raising the Warsaw Convention as a defense); Trinh v. Citibank, N.A., 623 F. Supp. 1526, 1530 (E.D. Mich. 1985) (suggesting that a court having both types of jurisdiction should apply the forum state’s choice of law rules, thereby treating the case as one arising under diversity jurisdiction), aff’d 850 F.2d 1164 (6th Cir. 1988), cert. denied, 110 S. Ct. 2602 (1990); Jn Re Korean Air Lines Disaster of Sept. 1, 1983, 704 F. Supp. 1135, 1154-55 (D.D.C. 1988) (attempting to decide whether jury trial right given to plaintiffs who had pled a cause of action under the Convention should also be afforded to other plaintiffs who had failed to plead the Convention cause of action). ; A21 There is also the possibility that state-owned airlines would be subject to different laws than private airlines— federal courts no longer have diversity jurisdiction over foreign states (many of which own airlines) as defendants—because the Federal Sovereign Immunities Act is now the sole source of federal jurisdiction in those circumstances. See Ruggiero v. Compania Peruana de Vapores, 639 F.2d 872, 873-78 (2d Cir. 1981). Even under those circumstances, the state of choice of law analysis is currently not uniform. Compare Barkanic v. General Admin. of Civil Aviation of the People’s Republic of China, No. 90-7641, slip op. at 1312-1318 (2d Cir. Jan. 14, 1991) (holding that federal court must use forum state choice of law rules under the Foreign Sovereign Immunities Act) with Harris v. Polskie Linie Lotnicze, 820 F.2d 1000, 1002-03 (9th Cir. 1987) (hold- ing that federal courts should use federal common law choice of law rules under the Foreign Sovereign Immu- nities Act). Of course, we might solve the general choice of law problem presented by the Convention by adopting state law as federal law and limiting federal law to the choice of law issue. See, e.g., Corporacion Venezolana de Fomento v. Vintero Sales, 629 F.2d 786, 793 (2d Cir. 1980), cert. denied, 449 U.S. 1080 (1981); Aaron Ferer & Sons Ltd. v. Chase Manhattan Bank, 731 F.2d 112 (2d Cir. 1984). In that case, there would be consistency between the law applicable to the federal cause of action and the law applicable to the state cause of action. Nonetheless, the law would still vary between states and would also vary from one federal court to another, so that even federal law would not be constant. Moreover, differences might still creep in between the state and federal causes of action in the same federal court A22 because the federal choice of law analysis might well dif- fer from the state choice of law analysis. See, e.g., Harris, 820 F.2d at 1004 & n.5 (applying federal com- mon law choice of law rules to claim under the Foreign Sovereign Immunities Act, with result different from result under California choice of law rules). In sum, the existence of the state causes of action would not only result in the inconsistent application of law to the same accident, but also would cause enor- mous confusion for airlines in predicting the law upon which they would be called to respond. It would sink federal courts into a Syrtis bog where they would not know whether they were at sea or on good, dry land, see J. Milton, Paradise Lost, Book II, reprinted in 4 Har- vard Classics, The Complete Poems of John Milton at 134 (1909), when deciding what law a plaintiff can rely upon, what law the court itself should apply, and why. The problem might not seem especially grave if one looks solely to the orderliness already inherent in the Convention’s presumption of airline liability and the $75,000 limit on individual recovery. But this surface unity ignores both the lurking legal chaos and the huge expenditure of time and expense in litigation over the choice of law, which would be inevitable if conflicting laws from various states were available in cases of will- ful misconduct. ‘ D. Cther Case Law Although decisional law is divided on whether the Warsaw Convention permits a plaintiff to bring a state law claim otherwise governed by the Convention seeking punitive damages, the more reasoned opinions conclude as we do that such claims are barred by the Convention. A23 In Harpalani, 634 F. Supp. at 799, the District Court for the Northern District of Illinois held that allowing punitive damage awards would be inconsistent with the Convention’s scheme of keeping compensation at a suf- ficiently low level to allow carriers to insure against losses, ‘‘both because carriers cannot insure against such awards, and because the purpose of punitive damages— to punish and deter . . . is unrelated to the signatories’ goal of ensuring minimally adequate compensation.’’ Id., disapproved of on other grounds in Wolgel v. Mex- icana Airlines, 821 F.2d 442, 445 (7th Cir.), cert. denied, 484 U.S. 927 (1987). Other courts have found this argument persuasive. In Floyd, the Eleventh Circuit squarely held that allowing punitive damages in an action based on state law would “conflict with the scheme of liability provided for in the Warsaw Convention.’’ 872 F.2d at 1485. Floyd noted that the entire tone of the Convention appears to be compensatory, not punitive. Jd. at 1487. It rejected the argument that Article 25 itself created an action for punitive damages, id. at 1483-84, and held that the Con- vention was meant to compensate injured passengers, not to punish airlines. Jd. at 1486. Therefore, though the court expressly declined to address whether the Con- vention creates an exclusive cause of action, it held that the plaintiffs could not recover punitive damages on their state law claims even if they could prove willful misconduct. Jd. at 1486-89. In re Air Crash Disaster at Gander, Newfoundland on Dec. 12, 1985, 684 F. Supp. 927 (W.D. Ky. 1987), reached the same conclusion. It held that ‘‘state law claims for punitive damages are pre-empted by the Con- vention to the extent that they would prevent the appli- A24 cation of the Convention’s limitations.’’ Jd. at 932-33. Cf. In Re Aircrash in Bali, Indonesia on April 22, 1974, 684 F.2d 1301, 1308 (9th Cir. 1982) (‘‘California law is preempted by the Warsaw Convention to the extent that California law would prevent the application of the Convention’s limitation on liability’’). Only two cases support the argument that punitive damages do not conflict with the Convention’s pur- poses: Hill v. United Airlines, 550 F. Supp. 1048, 1054- 56 (D. Kan. 1982); Jn re Korean Airlines Disaster, MDI. 565 (D.D.C. 1989), appeal docketed, No. 89-5415 (D.C. Cir. Nov. 3, 1989). Hill stated only that the plaintiffs in that case had properly invoked the willful misconduct provision, which if proved ‘‘might entitle plaintiffs to recover actual and punitive damages,’’ 550 F. Supp. at 1056, but this holding was not supported by any detailed reasoning. The presiding judge affirmed the jury award of punitive damages in Jn re Korean Airlines Disaster without opinion. See Buono, The Receverability of Punitive Damages Under the Warsaw Convention in Cases of Willful Misconduct: Is the Sky the Limit?, 13 Fordham L. J. 570 (1990). Thus, those courts that have carefully analyzed whether punitive damages are recov- erable under state law claims arising under the Conven- tion have decided they are not recoverable. E. Analogous Supreme Court Case Although not precisely on point, Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978), is analogous to the issue before us. In that case, Title II of the Ports and Waterways Safety Act of 1972 authorized the Secretary of the Department of Transportation to issue regulations respecting the design, construction and operation of oil nh st aT ort ine nea A25 tankers, in order to ensure minimum standards of vessel safety and the protection of the marine environment. /d. at 161. The Secretary was required tc inspect vessels and to issue certificates of compliance allowing the ship to carry the relevant cargo. Jd. at 162-63. Ray read this statutory pattern as embodying Congress’ aim to impose uniform national standards for the design and construc- tion of oil tankers. /d. at 163-64. Among other things, the Court noted that Congress planned to have a uni- form set of rules in an area that had traditionally been one in which international—rather than national—action was preferable because of the international nature of the problem of marine pollution. Jd. at 166. It also noted that Congress included a provision requiring the Secre- tary to transmit his proposed rules to appropriate inter- national forums ‘‘for consideration as _ international standards’’ and that several other requirements of the Act indicated that ‘‘Congress expressed a preference for international action.’’ Jd. at 167. The Supreme Court ruled therefore that the Act leaves no room for the States to impose different or stricter design requirements than those which Con- gress has enacted with the hope of having them internationally adopted or has accepted as the result of international accord. A state law in this area would frustrate the congressional desire of achieving uniform, international standards and is thus at odds with ‘the object sought to be obtained by [Title II] and the character of obligations imposed by it... .’ Id. at 168 (quoting Rice, 331 U.S. at 230). Similarly, by adhering to the Convention, Congress expressed a preference for_uniform, international rules. A26 The Convention also operates in an area in which such rules are required due to the international nature of the problem of carrier liability. State statutes governing wrongful death actions differ significantly as to the ele- ments, measure, and distribution of damages. See | S. Speiser, Recovery for Wrongful Death § 1.9 at 29 (2d ed. 1975). The existence of differing laws in various States—particularly respecting punitive damages—would frustrate the Convention’s aims of uniformity and cer- tainty in the application of those international rules. In sum, allowing each of the individual states to pre- scribe the elements of damage claims governed by the Convention would, as discussed above, ‘‘create potential frustration of national purposes.’’ San Diego Building Trades Council, 359 U.S. at 244. We recognize there is a general presumption against finding preemption of state law, see Motor Vehicle Mfrs. Ass’n of United States, Inc. v. Abrams, 899 F.2d 1315, 1319 (2d Cir. 1990), but the existence of separate state causes of action conflicts so strongly with the uniform enforcement of the Treaty that in our view that presumption is overcorne. IV FEDERAL COMMON LAW A. Adopting Federal Common Law Because the Warsaw Convention preempts state law causes of action arising under it, we must next deter- mine what law must be applied in deciding the claims before us. We look to the source of the right in order to determine the controlling law. See Van Gemert v. Boe- ing Co., 553 F.2d 812, 813 (2d Cir. 1977). The source of the right to sue under the Convention is the Convention itself—a treaty that only the federal government has the oes Maes tt A27 power to make. U.S. Const. art. II, § 2, cl. 2; art. I, § 10, cl. 1. Consequently, the source of the right is federal law— in fact, uniquely federal law. It follows then the sub- stantive law we must apply is also federal law. See Clearfield Trust Co. v. United States, 318 U.S. 363, 366-67 (1943); Vintero Sales Corp., 629 F.2d at 795; cf. DeMarines v. KLM Royal Dutch Airlines, 580 F.2d 1193, 1201 n.12 (3d Cir. 1978) (noting that after Ben- jamins, when a plaintiff asserts a cause of action based on the Convention itself, ‘‘a federal court, not sitting in diversity, would not be bound by state substantive law and would be free to fashion’’ applicable rules of law *‘under federal law principles’’). Two choices are generally available to a court in deciding the law created by a federal cause of action: adopting state law or creating a uniform federal com- mon law. It would make little sense to adopt state law when uniform interpretation of the federal law is more consistent with the Convention’s purposes. Clearfield Trust states that one of the primary considerations in determining whether federal courts should fashion fed- eral law or merely adopt state law is the degree of need for national uniformity. Clearfield Trust, 318 U.S. at 367. Since, as a treaty, the Warsaw Convention is the Supreme Law of the Land, U.S. Const. art. VI, cl. 2, this federally-created cause of action should be con- strued exclusively under federal law. See Block, 386 F.2d at 337-38 (Convention is like a ‘‘uniform law’’ within the United States and court ‘‘has an obligation to keep interpretation as uniform as possible’’). Other circuits agree. In Jn re Mexico City, 708 F.2d 400, the Ninth Circuit recognized the Convention’s fed- A28 erally created cause of action and held ‘‘the questions of who are the persons entitled to assert that cause of action and what are their respective rights may be deter- mined by reference to other federal statutes.’’ Jd. at 415. It left the task of determining the ‘‘most appropri- ate analog’’ to future courts. /d. Fhe Fifth Circuit in Boehringer-Mannheim considered whether attorneys fees are recoverable ‘‘under federal law’’ in a Warsaw Con- vention action. See 737 F.Zcd at 459. Citing A/lyeska Pipeline Serv. Co. v. Wilderness Soc., 421 U.S. 240, 247 (1975), it concluded they were not recoverable under the common law American Rule. See also In re Korean Air Lines, 704 F. Supp. at 1154 (applying federal common law to claim for jury trial under the Warsaw Convention and the Death on the High Seas Act). Thus, we adopt substantive federal common law as the law governing the cause of action under the Warsaw Convention. B. Nature of the Federal Cause of Action: Tort not Contract The next question is what is the type and content of this substantive law. Pan Am argues that we must inter- pret the Treaty in a manner consistent with the ‘‘shared expectations of the contracting parties,’’ and that the framers of the Convention intended to create a cause of action sounding in contract. We do not doubt that the Convention was drafted against a civil law background that placed the cause of action in contract. See Saks, 470 U.S. at 399 (Convention was ‘‘drafted in French by continental jurists’’); Miller, Liability in International Air Transport, at 235; Lowenfeld & Mendelsohn, at 498-500. ) A29 Nonetheless, the label ‘‘contract’’ is misleading, and of little use in determining the substance of the cause of action created by the Convention. The bodies of com- mon and civil law of contract are not identical. Com- mon law tends to classify damages intended to compensate or punish as sounding in tort, and any mea- sure of damages meant to give the plaintiff the benefit for which he bargained as sounding in contract. Yet, under the French law governing a contract of carriage— which is the type of contract at issue here—the contract ‘‘can provide a basis for any action, be it wrongful death, personal injury, delay or damage to baggage or cargo.’’ Miller, Liability in International Air Transport at 231. In fact, the primary result of placing the action in contract rather than negligence in French law is that the plaintiff need not prove negligence in order to recover for injuries stemming from an accident. /d. at 237 & n.19; Calkins, The Cause of Action, 26 J. Air L. & Com. at 219-20. Even the legal consequences of gross negligence fall under the rules of contract: ‘‘[u]nlimited liability in cases of dol or faute lourde [loosely translat- able as gross negligence] is sometimes seen as having a tortious nature but, more often, it is analyzed as an aggravated liability which retains its contractual nature. The very rule that the liability limitations are set aside is itself considered as a rule of contractual liability.’’ Jd. at 234. | In searching for the appropriate source from which to draw federal common law, the closest analog is not con- tract, but tort law, for the causes of actions the Conven- tion preempts are the types of claims the common law normally associates with the law of tort. Consequently, in the absence of a specific conflict between the Conven- tion, as interpreted in the context of the shared expecta- a A30 tions of the contracting parties, we look to the common law of tort in order to determine the elements of the cause of action under the Convention. Federal common law of tort recognizes the right to a wrongful death recovery, see Moragne v. States Marine Lines, Inc., 398 U.S. 375, 409 (1970), and allows an award of punitive damages, see Smith, 461 U.S. at 34- 35, but solely to punish a defendant and deter certain kinds of conduct. See Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299, 306 & n.9 (1986). Hence, because federal common law does not accord a right to recover for a compensatory element in a punitive dam- ages claim, we need only decide whether the convention permits recovery of punitive damages to punish a defen- dant and deter certain kinds of conduct. With th [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2538%3A1. Public record. Not legal advice.