Petition for Writ of Certiorari — Aerovias Nacionales de Colombia, S. A. v. Alvarez
Supreme Court brief1991
Ask Donna
What actually matters in this document.
Text
91-688.
IN THE
Supreme Court of the United
OCTOBER TERM, 1991
|
}
i
}
>
AEROVIAS NACIONALES DE COLOMBIA, S.A., AVIANCA, INC.,
and COMMODORE AVIATION, INC.,
Petitioners,
—_—vV.—
MARIA BERNARDA ALVAREZ, as Personal Representative of
the Estate of Amanda Maria Alvarez, Deceased, and on
behalf of PEDRO P. ALVAREZ and MARIA BERNARDA
ALVAREZ,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
George N. Tompkins, Jr.
Counsel of Record
CONDON & FORSYTH
1251 Avenue of the Americas
New York, New York 10020
(212) 757-6870
Attorneys for Petitioners AEROVIAS
NACIONALES DE COLOMBIA,
S.A., AVIANCA, INC. and
COMMODORE AVIATION, INC.
i
QUESTION PRESENTED FOR REVIEW
Whether the decision of a District Court that the cause of
action created by the Warsaw Convention is not exclusive,
which decision is separate from and preceded consideration
of a motion to remand the case to the state court from which
removed, is insulated from federal appellate review by 28
U.S.C. § 1447(d)?
i
PARTIES TO THE PROCEEDING BELOW
The parties before the Court and to the proceedings below
are:
1. Petitioners AEROVIAS NACIONALES DE COLOM-
BIA, S.A. (AVIANCA), AVIANCA, INC. and COMMO-
DORE AVIATION, INC. (COMMODORE).
2. Respondents Maria Bernarda Alvarez, as personal repre-
sentative of the Estate of Amanda Maria Alvarez (Deceased),
and on behalf of Pedro P. Alvarez and Maria Bernarda
Alvarez.
RULE 29.1 LIST
1. AVIANCA has the following non-wholly owned subsidi-
aries: Helicopteros Nacionales de Colombia, S.A. (Helicol),
Aerocomercio Internal Ltda., Sociedad Productora y Com-
erc. de Alimentros Ltda. (Presto), Corporacion de Viajes
Ltda. (Coviajes) and Sociedad Aeronautica de Medellin Con-
solidada, S.A. (SAM).
2. AVIANCA, INC. is a wholly owned subsidiary of
AVIANCA.
3. COMMODORE is a subsidiary of Israel Aircraft Indus-
tries International, Inc.
iil
TABLE OF CONTENTS
QUESTION PRESENTED FOR REVIEW...........
PARTIES TO THE PROCEEDING BELOW ........
PE NE MR ck sere eedtcesceeccveciees PCT Eee
pe es yy |. SE eee
CPOE cewtcceesvcseevssousereccesers
EE ca bbb 6065 ct eeeedeeeesccceeveeneees
STATUTORY PROVISION INVOLVED............
ye ye ae aya ey |. | Ge
REASONS FOR GRANTING THE WRIT ..........
I.
Il.
THE ELEVENTH CIRCUIT’S FAILURE TO
REVIEW THE DISTRICT COURT’S DECI-
SION AS TO THE EXCLUSIVITY OF THE
WARSAW CONVENTION CAUSE OF
ACTION CONFLICTS IN PRINCIPLE
WITH THE COURT’S DECISION IN WACO
V. UNITED STATES FIDELITY & GUAR-
ANTY CO. AND THE DECISIONS OF
OTHER CIRCUIT COURTS OF APPEAL ..
THE ELEVENTH CIRCUIT’S DECISION
SANCTIONS A DECISION BY THE DIS-
TRICT COURT WHICH SO FAR EXCEEDS
THE PERMISSIBLE LIMITS OF TREATY
INTERPRETATION AS TO REQUIRE THE
EXERCISE BY THE COURT OF ITS
SUPERVISOR? POWERS .....cccccceccees
iv
PAGE
Ill. THE DECISION BELOW RAISES RECUR-
RING IMPORTANT AND UNRESOLVED
QUESTIONS OF FEDERAL APPELLATE
Fb rcvbka ceri sekeceedernci ye 15
A. Review is Necessary to End Confusion
Among Lower Courts and Litigants Inter-
preting 28 U.S.C. § 1447(d)} .........06.. 15
B. The Eleventh Circuit Decision Extends the
Nonreviewability Rule Beyond the Limits
Fe Gres Oe oo os encase 6 aed 17
ee Reverie rete Pere re eer e Tee Tere 19
TABLE OF AUTHORITIES
Cases: PAGE
Aerovias Nacionales de Colombia, S.A. v. Calderon,
No. 91-418 (U.S. cert. filed Sept. 13, 1991)........ 6, 7
Air France v. Saks, 470 U.S. 392 (1985) ............ 14, 18
Allen v. Ferguson, 791 F.2d 611 (7th Cir. 1986) ..... 9, 16
Armstrong v. Alabama Power Co., 667 F.2d 1385
6th | RE re ery ee re re ere )
Benjamins v. British European Airways, 572 F.2d 913
(2d Cir. 1978), cert. denied, 439 U.S. 1114 (1979).. 3n
Boehringer-Mannheim Diagnostics, Inc. v. Pan Ameri-
can World Airways, Inc., 737 F.2d 456 (Sth Cir.
1984), cert. denied, 469 U.S. 1186 (1985).......... 14
Boys Mkts., Inc. v. Retail Clerk’s Union Local 770,
pe RT rr. ie 18
Calderon v. Aerovias Nacionales de Colombia, S.A.,
929 F.2d 599 (11th Cir. 1991), petition for cert. filed,
ee E.R ee ee passim
Chan v. Korean Air Lines, Ltd., 490 U.S. 122
RRR Appear pet nies Beet ea FUR eee am lay ah wo Ne Ark ee ge ae 14, 18
Clorox Co. v. U.S. Dist. Court for the Northern Dist.
of California, 779 F.2d 517 (9th Cir. 1985)........ 9, 16
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541
Ce Se shn ecu eaeres tater aede were dab teneears lin
Eastern Airlines, Inc. v. Floyd, 113 L. Ed. 2d 569
SG Saws baesd ehei ee bra eeehaenee eee aeaeeernes 14, 18
Eggink v. Trans World Airlines, Inc., 22 Av. Cas.
Cee Fe ctee Gees es SHOE 60s eves verndiveses 14
vi
PAGE
Foster v. Chesapeake Ins. Co., 933 F.2d 1207 (3d Cir.
POOR 60:4: ¢-5sbekvngceens badness 9, lln, 16
Glasser v. Amalgamated Workers Union Local 88, 806
Fe Saoe Chee Gls SOs brane Keweveess 12, 13, 16, 17
Hansen v. Blue Cross of California, 891 F.2d 1384 (9th
Cae Re 5 0 boob 4k oe ee ee eeieiee ee eee 12, 13, 16
In re Air Disaster at Lockerbie, Scotland, on December
21, 1988, 928 F.2d 1267 (2d Cir. 1991), cert. denied,
@ U.S.5..W. sane Ct. 1B, TR occ ctediven 12, 14, 15
In re Air Disaster Near Cove Neck, New York, on Jan-
uary 25, 1990, No. 843 (J.P.M.D.L. June 14, 1990) 2
In re Life Ins. Co. of N. America, 857 F.2d 1190 (8th
Coe, FD iva wasn's ondcds dees cane ee eee 16
In re TMI Litigation Cases Consolidated II, 940 F.2d
SSS GO Gis Fe cbs che cde smancactadeetevate 10
Karl Koch Erecting Co. v. N.Y. Convention Center
Dev. Corp., 838 F.2d 656 (2d Cir. 1988).......... 9
Katsaris v. United States, 684 F.2d 758 (11th Cir.
POS 656 cnctarbesecenakeearer ees hemeraasioese 9, 16
Kozera vy. Spirito, 723 F.2d 1003 (1st Cir. 1983) ..... 9
Mitchell v. Carlson, 896 F.2d 128 (Sth Cir. 1990).... 9, 16
Pelieport Investors, inc. v. Budco Quality Theatres,
Inc., 741 F.2d 273 (9th Cir. 1984)..... 9, 10, lln, 16, 18
Regis Associates v. Rank Hotels (Management) Ltd.,
So 7.06 25s GR Cah. TR has 6s der snwinseesenes 9, 16
Rhymes v. Arrow Air, Inc., 636 F. Supp. 737 (S.D.
Paes TD ive ae n0i4aed be eeeens eee 4, 15, 18n
Soley v. First Nat’l Bank of Commerce, 923 F.2d 406
Se GOB adi ocen ves cake edivdeeeeeseveee 16, 17
Vii
PAGE
Southeast Mortg. Co. v. Mullins, 514 F.2d 747 (Sth
Gs MOU o agen k22e05 ba FOC a pwehs bee Gnd erdeaveves 9
Survival Systems Division of the Whittaker Corp. v.
U.S. Dist. Court for the Southern Dist. of Califor-
nia, 825 F.2d 1416 (9th Cir. 1987), cert. denied, 484
Cy Se enh e eda che caedekeceeetesebecans 17
Tillman v. CSX Transportation, Inc., 929 F.2d 1023
(Sth Cir. 1991), cert. denied, 60 U.S.L.W. 3262 (Oct.
Fp EE nc RGR aa sO Ni sae Oe Febee bi o6 hakdeeda deters 16
Trans World Airlines, Inc. v. Franklin Mint Corp., 466
as aber dieeeahueviaseeidaweweees 14, 18
Velasquez v. Aerovias Nacionales de Colombia, S.A.,
747 F. Sapp. 670 (S.D. Fin. 1990)... cccccevcees 14, 18n
Waco v. United States Fidelity and Guaranty Co., 293
Saeels A aos aes bs ooo hee a eee ones passim
Whitman v. Raley’s, Inc., 886 F.2d 1177 (9th Cir.
SK oss FAS RaW eG Sek tae kee nse A hears tena eeenes 16, 17
Statutes, Rules & Treaties:
Convention for the Unification of Certain Rules Relat-
ing to International Transportation by Air, Oct. 12,
1929, 49 Stat. 3000, T.S. No. 876 (1934), reprinted
in note following 49 U.S.C. App. § 1502 ......... passim
Se Uae BE 60-0 oo ehecenievexeedyisussevees 2
ee Oe a 65 oh bo kied Cavedetasveascvensancees lin
Be Wie OE nk ev inscurccouteceeneipucssedenes 3, 4
Se ee a oe ck bb ecen beech vacueeccecaeyeuen 2
y 2S Fok fo Ser er rT errr Ty 3, 4
ee Ee a Es ox i ke dada te needsnranesdeeeewen passim
Te Ue OUR i aka 0 0 ee tka vhensexteseneneeenee 6
kanal
"Os 4 .
on Gal AP ryt
a
IN THE
Supreme Court of the United States
OcTOBER TERM, 1991
No.
>
AEROVIAS NACIONALES DE COLOMBIA, S.A., AVIANCA, INC.,
and COMMODORE AVIATION, INC.,
Petitioners,
—_—V.—
MARIA BERNARDA ALVAREZ, as Personal Representative of
the Estate of Amanda Maria Alvarez, Deceased, and on
behalf of PEDRO P. ALVAREZ and MARIA BERNARDA
ALVAREZ,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
<i
PETITION FOR WRIT OF CERTIORARI
The Petitioners AEROVIAS NACIONALES DE COLOM-
BIA, S.A. (AVIANCA), AVIANCA, INC. and COMMO-
DORE AVIATION, INC (COMMODORE) respectfully pray
that a writ of certiorari issue to review the order of the
United States Court of Appeals for the Eleventh Circuit,
entered in the above-captioned proceeding on October 4,
1991, dismissing the appeal of the Petitioners.
OPINIONS BELOW
The unreported Order of the Court of Appeals for the
Eleventh Circuit is reprinted in the Appendix hereto at la,
infra.
2
The Memorandum Opinion and Order of Remand of the
United States District Court for the Southern District of Flor-
ida (King, J.) is reported at 756 F. Supp. 550, and is
reprinted in the Appendix hereto at 2a, infra.
JURISDICTION
The Order of the Court of Appeals for the Eleventh Cir-
cuit was entered on October 4, 1991. The jurisdiction of this
Court is invoked under 28 U.S.C. § 1254(1).
STATUTORY PROVISION INVOLVED
The statutory provision involved is 28 U.S.C. § 1447(d)
which provides:
An order remanding a case to the State court from
which it was removed is not reviewable on appeal or
otherwise, except that an order remanding a case to the
State court from which it was removed pursuant to sec-
tion 1443 of this title shall be reviewable by appeal or
otherwise.
STATEMENT OF THE CASE
On January 25, 1990, an AVIANCA Boeing 707 aircraft
operating as Flight 052 from Colombia to New York crashed
in the vicinity of Cove Neck, New York. Of the 149 passen-
gers on board, 65 were killed and 84 were injured. Numerous
passenger wrongful death and personal injury actions were
filed against Petitioners in various United States District
Courts and in the state courts of Florida. The Judicial Panel
on Multidistrict Litigation transferred all federal actions to
the Eastern District of New York and Chief Judge Thomas
C. Platt for coordinated and consolidated pretrial proceed-
ings pursuant to 28 U.S.C. § 1407. In re Air Disaster Near
Cove Neck, New York, on January 25, 1990, No. 843
(J.P.M.D.L. June 14, 1990).
The present case involves one of the wrongful death
actions arising out of the crash. Respondents’ decedent was
travelling on AVIANCA Flight 052 pursuant to a ticket
which provided for ‘‘international transportation’’ within the
meaning of Article 1 of a treaty of the United States known
as the Warsaw Convention.’ It is undisputed that the Warsaw
Convention is applicable to this and the other pending
actions arising out of the crash of Avianca Flight 052.’
The action originally was commenced in the Circuit Court
for Dade County, Florida and sought relief solely pursuant to
the Florida Wrongful Death Statute. The Complaint as filed
did not make reference to the Warsaw Convention or assert
any rights thereunder, although the Complaint did allege that
Respondents’ decedent was killed in the accident involving
AVIANCA Flight 052 on January 25, 1990. The Complaint
also alleged that Respondents’ decedent was travelling pursu-
ant to a ticket for AVIANCA Flight 052 which originated in
Colombia and was destined for New York.
The District Court Proceedings: Petitioners timely removed
the action to the United States District Court for the South-
ern District of Florida pursuant to 28 U.S.C. §§ 1331 and
1441 on the ground that Respondents’ claims arise under and
are governed by the Warsaw Convention and federal question
jurisdiction therefore exists.’
After removal, Respondents moved to remand the action
on the ground that the Complaint did not invoke or raise any
1 Convention for the Unification of Certain Rules Relating to Interna-
tional Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No.
876 (1934), reprinted in note following 49 U.S.C. App. § 1502.
2 The Warsaw Convention applies ‘‘to all international transportation
of persons, baggage, or goods performed by aircraft for hire.’’ War-
saw Convention, Article 1, 49 Stat. 3014. It also is undisputed that
Article 17 of the rasta 60 creates a cause of action for wrongful
death. See Benjamins v. British European Airways, 572 F.2d 913 (2d
Cir. 1978), cert. denied, 439 U.S. 1114 (1979).
3 _—«*It is conceded that removal was available only on federal question
grounds.
4
federal law, treaty or statute and was founded solely on the
Florida Wrongful Death Staiute. In support of the motion,
Respondents argued that the Warsaw Convention does not
provide the exclusive cause of action but provides only an
exclusive remedy that preempts inconsistent state law reme-
dies. Therefore, Respondents’ argument continued, there was
no federal question involved so as to confer jurisdiction by
removal on the District Court pursuant to 28 U.S.C. §§ 1331
and 1441.
In opposing the remand motion, Petitioners argued that
regardless of the allegations in the Complaint and the reliance
by Respondents on local state law for the alleged cause of
action for wrongful death, the Warsaw Convention applied
by operation of law to provide Respondents with the exclu-
sive cause of action and therefore removal on federal ques-
tion jurisdiction grounds was proper.
Prior to addressing or deciding the remand motion, the
District Court reached a decision that the Warsaw Conven-
tion cause of action is not exclusive even where it unquestion-
ably applies to the transportation. Appendix at Sa-10a, infra,
756 F. Supp. at 553-55. In reaching this decision, the District
Court, relying on its own 1986 decision in Rhymes v. Arrow
Air, Inc., 636 F. Supp. 737 (S.D. Fla. 1986) (King, J.), rea-
soned as follows:
At the outset of this discussion, it is important to rec-
ognize that the availability of a federal cause of action
founded upon the Warsaw Convention has been
squarely resolved in the circuit. . . . If there were no
federal cause of action, this court would need to go no
further before reaching a decision to remand this case to
state court. Because a federal cause of action exists
under the Warsaw Convention, however, the court needs
to determine whether it is exclusive.
+ * bd
Although the Warsaw Convention sets forth certain
uniform procedural rules with respect to the filing of
LS
claims, it is clear that the Convention does not presup-
pose to make such rules completely uniform. . . . The
fact that a federal cause of action has been recognized
under the Warsaw Convention does not change the fact
that the Convention leaves matters to local law.
* * *
[Vjarious courts, including the Velasquez court, have
taken the contrary position that a cause of action arising
under the Warsaw Convention is the exclusive federal
cause of action available to plaintiffs.
7 * *
Many of the other courts which state that the Warsaw
Convention’s cause of action is exclusive have done so
without much, if any, discussion; others have simply
addressed the issue in dicta. Moreover, these cases also
generally fail to analyze the ‘‘however founded’’ lan-
guage of Article 24(1) and the distinction between reme-
dies and causes of action under the Convention.
* ” *
For the reasons set forth above, this court holds that
the Warsaw Convention does not create the exclusive
cause of action in those cases to which it is applicable.
Appendix at Sa-10a, infra, 756 F. Supp. at 553-55.
Following this decision, the District Court then addressed
and proceeded to decide the remand motion, holding:
Having determined that the Warsaw Convention does
not create an exclusive cause of action, this court next
addresses whether the defendants can properly remove
this case.
+ * a
Because the plaintiff has set forth a cause of action
under state law without bringing in any federal theory
and because the Warsaw Convention’s cause of action is
6
not exclusive, the plaintiff’s complaint does not arise
under federal law so as to confer removal jurisdiction
pursuant to 28 U.S.C. §§ 1331 and 1441.
Appendix at 10a-12a, infra, 756 F. Supp. at 555-56.
The District Court granted the motion and remanded the
action to the Circuit Court for Dade County, Florida.
Appendix at 12a, infra, 756 F. Supp. at 556.
The Court of Appeals Proceedings: Petitioners filed a Peti-
tion for Writ of Mandamus, pursuant to 28 U.S.C. § 1651,
requesting the Eleventh Circuit to direct the District Court to
vacate the remand order and reinstate the action. The Peti-
tion for a Writ of Mandamus was denied on March 8, 1991.
Before the Petition was denied, Petitioners also filed a Notice
of Appeal from the decision of the District Court that the
Warsaw Convention did not provide the exclusive cause of
action. Pursuant to a Memorandum of the Court of Appeals
dated March 22, 1991, the jurisdictional issue was carried
with the case and was fully addressed in the briefs along with
the substantive issue of whether the Warsaw Convention pro-
vides Respondents’ exclusive cause of action.
After Petitioners filed their brief on the merits, Respon-
dents filed a motion to dismiss the appeal on the authority of
Calderon v. Aerovias Nacionales de Colombia, S.A., 929
F.2d 599 (11th Cir. 1991), in which an appeal similar to this
case was dismissed for lack of appellate jurisdiction. A peti-
tion for a writ of certiorari in Calderon was filed on Septem-
ber 13, 1991 and currently is pending before the Court.
Aerovias Nacionales de Colombia, S.A. v. Calderon, No. 91-
418 (U.S. cert. filed Sept. 13, 1991). The Court of Appeals,
in an Order dated October 4, 1991, granted Respondents’
motion and dismissed the appeal in this case simply stating:
The district court’s conclusion regarding the exclusivity
of the remedy provided by the Warsaw Convention is
inextricably interwoven with its decision to remand the
action to state court. Accordingly, its order is not
7
appealable. See Calderon v. Aerovias Nacionales de
Colombia, 929 F.2d 599 (11th Cir. 1991).
Appendix at la, infra.
REASONS FOR GRANTING THE WRIT
The issue presented in this case is the same issue presented
in the petition for a writ of certiorari in Aerovias Nacionales
de Colombia, S.A. v. Calderon, No. 91-418 (U.S. cert. filed
Sept. 13, 1991), currently pending before the Court—the
extent to which 28 U.S.C. § 1447(d) shields from review a
district court’s decision regarding the scope and effect of the
Warsaw Convention cause of action. As the Convention is a
treaty of the United States, this issue has far reaching ramifi-
cations, not only on the substantive rights of Petitioners in
this case, but on all pending and future actions to which the
Convention applies. The court below has expanded the non-
reviewability rule of 28 U.S.C. § 1447(d) to encompass, not
simply remand orders, but decisions of a substantive non-
jurisdictional nature if the decision has a subsequent effect
on the separate decision to remand.
The Court of Appeals for the Eleventh Circuit, on the
authority of its prior Calderon decision, incorrectly held that
28 U.S.C. § 1447(d) precluded it from reviewing the substan-
tive decision of the District Court that the Warsaw Conven-
tion did not provide Respondents with the exclusive cause of
action and thus dismissed the appeal. In following the
Calderon decision and holding that it had no jurisdiction to
review this substantive decision of the District Court, the
Eleventh Circuit has again decided a federal question in a
way that conflicts in principle with the applicable decisions of
the Court and numerous other Circuit Courts. The Eleventh
Circuit thereby has sanctioned such a departure by the Dis-
trict Court from the accepted and usual principles of treaty
interpretation as to require the Court to exercise its power of
supervision.
8
The Eleventh Circuit also has incorrectly decided a recur-
ring important question of federal appellate jurisdiction, viz,
the intended scope of § 1447(d), which should be reviewed
and settled by the Court in order to insure uniformity in the
application of § 1447(d).
I
THE ELEVENTH CIRCUIT’S FAILURE TO REVIEW
THE DISTRICT COURT’S DECISION AS TO THE
EXCLUSIVITY OF THE WARSAW CONVENTION
CAUSE OF ACTION CONFLICTS IN PRINCIPLE WITH
THE COURT’S DECISION IN WACO V. UNITED
STATES FIDELITY & GUARANTY CO. AND THE DECI-
SIONS OF OTHER CIRCUIT COURTS OF APPEAL
As in the Calderon case, this case does not involve an
appeal from a remand order. This case involves an appeal
from a district court’s substantive legal] decision regarding the
scope and effect of a treaty of the United States, which pre-
ceded consideration of a remand motion and ultimate entry
of a remand order.
Prior to remanding this action, the District Court decided
that the Warsaw Convention does not provide Respondents
with the exclusive cause of action. The Eleventh Circuit, in
dismissing the appeal, held that 28 U.S.C. § 1447(d) bars
review of this decision because the court viewed the District
Court’s exclusivity decision as ‘‘inextricably interwoven with
its decision to remand the action to state court.’’ Appendix at
la, infra. This holding of the Court of Appeals is erroneous
and conflicts in principle with the Court’s decision in Waco
v. United States Fidelity & Guaranty Co., 293 U.S. 140
(1934) and numerous decisions of other Circuit Courts of
Appeal.
In Waco, 293 U.S. 140 (1934), a case involving a district
court’s order of dismissal of a party’s cross-action (third-
party action) which resulted in the remand of the case to
9
state court, the Fifth Circuit Court of Appeals had dismissed
the appeal on the grounds that no appeal lies from an order
of remand. In reversing the Fifth Circuit and holding the dis-
missal order reviewable, the Court stated:
If the District Court’s order stands the cross-action will
be no part of the case which is remanded to the state
court. Indeed, if the District Court was right, the cause
could not have been remanded except for the exclusion
of the [third-party defendant] as a party. True, no
appeal lies from the order of remand; but in logic and in
fact the decree of dismissal preceded that of remand and
was made by the District Court while it had control of
the cause. Indisputably this order is the subject of an
appeal; and, if not reversed or set aside, is conclusive
upon the petitioner.
Waco, 293 U.S. at 143.
The limitations on the scope of the nonreviewability rule as
to remand orders, as enunciated by Waco, have been recog-
nized by numerous Circuit Courts of Appeal in interpreting
and applying 28 U.S.C. § 1447(d). See Foster v. Chesapeake
Ins. Co., 933 F.2d 1207, 1211 (3d Cir. 1991); Mitchell v.
Carlson, 896 F.2d 128, 132 (Sth Cir. 1990); Regis Associates
v. Rank Hotels (Management) Ltd., 894 F.2d 193, 194-95
(6th Cir. 1990); Karl Koch Erecting Co. v. N.Y. Convention
Center Dev. Corp., 838 F.2d 656, 658 (2d Cir. 1988); Allen
v. Ferguson, 791 F.2d 611, 613-15 (7th Cir. 1986); Clorox
Co. v. U.S. Dist. Court for the Northern Dist. of California,
779 F.2d 517, 520 (9th Cir. 1985); Pelleport Investors, Inc. v.
Budco Quality Theatres, Inc., 741 F.2d 273, 276-77 (9th Cir.
1984); Kozera v. Spirito, 723 F.2d 1003, 1005 n.1 (ist Cir.
1983); Katsaris v. United States, 684 F.2d 758, 761 (11th Cir.
1982); Armstrong v. Alabama Power Co., 667 F.2d 1385,
1387 (11th Cir. 1982); Southeast Mortg. Co. v. Mullins, 514
F.2d 747, 749 (Sth Cir. 1975).
For example, in Pelleport Investors, Inc. v. Budco Quality
Theatres, Inc., 741 F.2d 273 (9th Cir. 1984), the Court of
Appeals for the Ninth Circuit held that appellate jurisdiction
10
exists to review a substantive legal decision which precedes a
remand order. The court held:
[T]he district court ordered the case remanded to state
court after it found the parties’ agreement to litigate in
state court enforceable. Not only did the court’s deter-
mination that the forum selection clause was valid and
enforceable precede the remand order, it formed the
basis of that order. Like the dismissal in Waco, the
court’s decision that the contract clause is enforceable, if
not reversed or set aside, is conclusive upon [defendant],
and, therefore, must be reviewed. To hold otherwise
would deprive [defendant] of its right to appeal a sub-
stantive determination of contract law. We cannot
believe that Congress intended to immunize such deci-
sions from review. -
Pelleport, 741 F.2d at 277.
The general principles and rationale enunciated by the
Supreme Court in Waco and its progeny are that the statu-
tory nonreviewability rule has its limits and does not extend
to insulate from review substantive decisions rendered prior
to remand which affect the substantive rights of a party. The
extension of 28 U.S.C. § 1447(d) to insulate such decisions
from appellate review would deprive a litigant of its right to
appeal a substantive legal determination as to the scope and
effect of a treaty binding upon that party in subsequent pro-
ceedings. Cf. In re TMI Litigation Cases Consolidated II, 940
F.2d 832, 845-47 (3d Cir. 1991).
As in Waco, Petitioners here sought review of a substan-
tive legal decision (i.e. the exclusivity of the Warsaw Conven-
tion cause of action) that preceded the remand order. In
summarily holding that this aspect of the District Court’s
decision was not reviewable, the Eleventh Circuit sidestepped
the essential distinction drawn by the Court in Waco between
an appeal from a remand order and an appeal from a deci-
sion which precedes a remand order, by characterizing the
District Court’s exclusivity decision as ‘‘inextricably interwo-
ven’’ with the decision to remand. Appendix at la, infra. It
1]
is this aspect of the Eleventh Circuit’s decision which con-
flicts in principle with Waco.‘
In order to arrive at its result, the court below, as did the
court in Calderon, ignored that the District Court first and
separately rendered a substantive decision that the Warsaw
Convention cause of action was not exclusive and that
Respondents, at their option, could bring a wrongful death
action under local state law, even where the Convention
unquestionably applies. Only after this decision had been ren-
dered did the District Court then proceed to address and then
decide the remand motion. The District Court specifically
segregated the exclusivity issue from the jurisdictional issue
and first addressed, at some length and in a separately
labelled section, the exclusivity issue. The District Court itself
recognized that it was making a substantive legal decision
apart from the jurisdictional issue when it stated:
If there were no federal cause of action, this court
would need to go no further before reaching a decision
to remand this case to state court. Because a federal
cause of action exists under the Warsaw Convention,
however, the court needs to determine whether it is
exclusive.
Appendix at 6a, infra, 756 F. Supp. at 553.
Only after the District Court had decided that the federal
Warsaw Convention cause of action is not exclusive did the
District Court separately address the remand issue:
Having determined that the Warsaw Convention does
not create an exclusive cause of action, this court next
4 The District Court’s decision prior to remand, that the Warsaw Con-
vention does not provide Respondents’ exclusive cause of action, is a
binding legal decision which affects the substantive rights of Petition-
ers and is appealable as a final collateral order pursuant to 28 U.S.C.
§ 1291. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541
(1949); Foster, 933 F.2d at 1211; Pelleport, 741 F.2d at 278. The deci-
sion in effect ends the litigation in the federal forum, amounting to a
dismissal since its effect is to surrender jurisdiction to the state court
and, if not appealable now, the order will be unreviewable. /d.
12
addresses whether the defendants can properly remove
this case.
Appendix at 10a, infra, 756 F. Supp. at 555.
It is clear that the decision to remand was not based on the
allegations of the Complaint but necessarily was preceded by
the substantive legal decision of the District Court that the
Warsaw Convention cause of action is not exclusive. The Dis-
trict Court’s erroneous decision on this issue should not be
insulated from review because it preceded a remand order nor
because of the Eleventh Circuit’s self-serving but faulty view
of the decision as ‘‘inextricably interwoven’’ with the remand
order.
The court below also ignored the numerous substantive
effects that the District Court’s decision has on the rights of
the parties after remand, apart from the jurisdictional effects.
For example, the District Court’s decision will affect Peti-
tioners’ substantive rights as to the applicable substantive
law, choice of law rule and measure of damages. See Jn re
Air Disaster at Lockerbie, Scotland, on December 21, 1988,
928 F.2d 1267 (2d Cir. 1991), cert. denied, 60 U.S.L.W. 3293
(Oct. 15, 1991). The court below, in summarily dismissing the
appeal, failed to address these issues.
As with the district court’s decision in Calderon, the Dis-
trict Court’s exclusivity decision in this case can be applied to
any Warsaw Convention case and in a non-jurisdictional con-
text. The Court of Appeals in this case simply ignored the
wide-ranging nonjurisdictional effects of the District Court’s
decision, as did the Eleventh Circuit in Calderon, and relying
on Calderon, dismissed the appeal. In this, the court below
erred.
The Calderon court was confused as to the scope and
effect of § 1447(d) and Waco in an action governed by the
Warsaw Convention. This confusion is evidenced by the pre-
emption cases it relied upon in dismissing the Calderon
appeal. See, e.g., Hansen v. Blue Cross of California, 891
F.2d 1384 (9th Cir. 1989); Glasser v. Amalgamated Workers
13
Union Local 88, 806 F.2d 1539 (llth Cir. 1986). The courts
in those cases would have reviewed the district court decisions
preceding the remand orders but for the fact that the federal
law which the defendants there attempted to invoke to sup-
port removal did not definitely apply to the factual allega-
tions in the complaints. Thus, the decisions affected only the
forum and not the substantive rights of the parties. Unlike
Glasser and Hansen, the applicability of the federal law in
this case, the Warsaw Convention, is unquestionable. More-
over, the issue of the exclusivity of the Convention cause of
action affects not only the forum in which the case is to be
heard but has conclusive binding effects on the substantive
rights of the Petitioners in state court subsequent to remand.
Even Glasser noted that where the district court reaches ‘‘the
merits of the preemption argument’’, the decision is review-
able. 806 F.2d at 1540.
The rationale and principle of Waco cannot be circum-
vented to deprive Petitioners of their right to appeal a deci-
sion of substantive law simply by labeling that decision as
‘‘inextricably interwoven’’ with the jurisdictional issue or
simply because the ‘‘exclusivity’’ issue also affects jurisdic-
tion.
Il
THE ELEVENTH CIRCUIT’S DECISION SANCTIONS A
DECISION BY THE DISTRICT COURT WHICH SO FAR
EXCEEDS THE PERMISSIBLE LIMITS OF TREATY
INTERPRETATION AS TO REQUIRE THE EXERCISE
BY THE COURT OF ITS SUPERVISORY POWERS
The decision of the Eleventh Circuit in turn effectively has
sanctioned the District Court’s erroneous decision that the
Warsaw Convention does not provide the exclusive cause of
action, a decision which has wide-ranging implications
beyond the facts of this case. |
Although the District Court recognized that the Warsaw
Convention creates a federal cause of action for wrongful
14
death and that numerous decisions have held that this cause
of action is the exclusive cause of action for claims arising
out of ‘‘international transportation,’’ the District Court nev-
ertheless held that the Convention cause of action is not
exclusive but only creates the exclusive ‘‘remedy.’’ Appendix
at 10a, infra, 756 F. Supp. at 555. In reaching this decision,
the District Court failed to properly review the language,
goals and drafting history of the Convention, contrary to
well established rules of treaty interpretation. See Eastern
Airlines, Inc. v. Floyd, 113 L. Ed. 2d 569 (1991); Chan v.
Korean Air Lines, Ltd., 490 U.S. 122 (1989); Air France v.
Saks, 470 U.S. 392 (1985); Trans World Airlines, Inc. v.
Franklin Mint Corp., 466 U.S. 243 (1984).
The language, goals and drafting history of the Warsaw
Convention establish that the Convention was intended to
create the uniform cause of action for damages arising out of
international transportation by air. As a treaty which was
created for the purpose of establishing uniform rules with
respect to the liability of air carriers, the Convention exclu-
sively governs the iights and responsibilities of passengers
and carriers wherever it applies. See Lockerbie, 928 F.2d
1267; Boehringer-Mannheim Diagnostics, Inc. v. Pan Ameri-
can World Airways, Inc., 737 F.2d 456 (Sth Cir. 1984), cert.
denied, 469 U.S. 1186 (1985); Velasquez v. Aerovias
Nacionales de Colombia, S.A., 747 F. Supp. 670 (S.D. Fila.
1990); Eggink v. Trans World Airlines, Inc., 22 Av. Cas.
(CCH) 17,731 (S.D.N.Y. 1990). As the court stated in Lock-
erbie:
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. Hence, the test to be applied
is whether these goals of uniformity and certainty are
frustrated by the availability of state causes of action for
death and injuries suffered by passengers on interna-
tional flights. We do not see how the existence of state
15
law causes of action could fail to frustrate these pur-
poses.
Lockerbie, 928 F.2d at 1275 (citations omitted).
The District Court’s non-exclusivity decision is not an iso-
lated incident. The practice prevails in the Southern District
of Florida of permitting plaintiffs to avoid the full applica-
tion of the Warsaw Convention to wrongful death and per-
sonal injury actions simply by not mentioning the Convention
in the complaint. The Rhymes and Calderon cases are clear
examples. In failing to review the District Court’s decision
regarding the exclusivity of the Warsaw Convention cause of
action, the Eleventh Circuit sanctions this practice. Of even
greater import, the court below has tacitly decided that the
application of the uniform liability rules of the Convention is
at the option of the plaintiff. The Court should exercise its
supervisory powers in order to ensure the consistent and uni-
form application of the Warsaw Convention and its goals.
Ill
THE DECISION BELOW RAISES RECURRING IMPOR-
TANT AND UNRESOLVED QUESTIONS OF FEDERAL
APPELLATE JURISDICTION
The scope of § 1447(d) in relation to the wholesale remand
of Warsaw Convention cases in the Southern District of Flor-
ida, and eventually throughout the Eleventh Circuit, raises a
recurring important question of federal appellate jurisdiction
which should be clarified and resolved by the Court.
A. Review is Necessary to End Confusion Among Lower
Courts and Litigants Interpreting 28 U.S.C § 1447(d)
The courts have given § 1447(d) and Waco inconsistent
interpretations which has led to confusion and irreconcilable
conflicts among the lower courts as to the application of
§ 1447(d) and its effect on the litigants.
16
Confusion exists as to whether a substantive decision pre-
ceding a remand order merely is ‘‘interwoven with’’ or
‘‘intrinsic to’’ the remand, or whether such a decision is sepa-
rate and apart from the remand order and, thus, reviewable.
See, e.g., Calderon, 929 F.2d 599; Soley v. First Nat’l Bank
of Commerce, 923 F.2d 406 (Sth Cir. 1991); Hansen, 891
F.2d 1384; Whitman v. Raley’s, Inc., 886 F.2d 1177 (9th Cir.
1989); Glasser, 806 F.2d 1539; Allen, 791 F.2d 611; Clorox,
779 F.2d 517; Pelleport, 741 F.2d 273. The lack of any defin-
itive guidance or standard has resulted in the development of
questionable rationale and doctrines which often ignore the
substantive effects of such decisions on the parties after
remand. See, e.g., Soley, 923 F.2d 406; Whitman, 886 F.2d
1177. Indeed, the doctrine adopted in Whitman and Soley, as
to whether a pre-remand decision is reviewable, is unworka-
ble and irrelevant in a Warsaw Convention case such as here,
because only the effect of the Convention, and not its appli-
cability, is disputed.
Similarly, some courts have held that while a substantive
decision preceding a remand order is reviewable, the court is
powerless to reinstate the action in federal court even if the
substantive decision preceding remand was erroneous. See,
e.g., Tillman v. CSX Transportation, Inc., 929 F.2d 1023
(Sth Cir. 1991), cert. denied, 60 U.S.L.W. 3262 (Oct. 7,
1991); Soley, 923 F.2d 406; Allen, 791 F.2d 611. Yet other
courts not only have reviewed the substantive decision pre-
ceding a remand order but have reinstated the action in fed-
eral court. See, e.g., Foster, 933 F.2d 1207; Mitchell, 896
F.2d 128; Regis, 894 F.2d 193; Clorox, 779 F.2d 517; Kat-
saris, 684 F.2d 758.
Courts also have held that it is within the state court’s dis-
cretion, after remand, to determine the preclusive effects of a
district court’s pre-remand substantive decision in the state
court proceedings. Hansen, 891 F.2d 1384; In re Life Ins.
Co. of N. America, 857 F.2d 1190 (8th Cir. 1988); Pelleport,
741 F.2d 273. Other courts have simply defined this troubling
issue away, concluding that the district court’s pre-remand
decision would have no preclusive effect on the state court’s
6
17
consideration of the same issue. Soley, 923 F.2d 406; Whit-
man, 886 F.2d 1177; Survival Systems Division of the Whit-
taker Corp. v. U.S. Dist. Court for the Southern Dist. of
California, 825 F.2d 1416 (9th Cir. 1987), cert. denied, 484
U.S. 1042 (1988); Glasser, 806 F.2d 1541. In summarily dis-
missing the appeal, the court below did not consider the pre-
clusive effect that the District Court’s non-exclusivity decision
would have on the rights of Petitioners in the subsequent
state court proceedings.
Review by the Court is necessary to provide definitive guid-
ance to end the recurring confusion and conflict among the
lower courts in the application and interpretation of Waco
and § 1447(d), particularly in relation to the intended scope
of the Warsaw Convention cause of action.
B. The Eleventh Circuit Decision Extends the Nonreviewabil-
ity Rule Beyond the Limits of 28 U.S.C. § 1447(d)
The Eleventh Circuit’s extension of the nonreviewability
rule to an exclusivity decision preceding a remand order, in
actions governed by the Warsaw Convention, is improper and
is contrary to the purpose, intent and scope of both § 1447(d)
and the Warsaw Convention. The policy underlying the non-
reviewability of remand orders is conspicuously absent in
cases such as this. The rationale for the rule is to prevent
delay by protracted litigation over simple jurisdictional issues
and is justified where the decision affects only the forum.
This rationale is not applicable when a decision which pre-
cedes and then results in the remand order affects the sub-
stantive rights of a party after remand. In Waco, the Court
recognized the right of a litigant, such as Petitioners, to
appeal a conclusive substantive legal decision which preceded
a remand order. The Court declined to extend the nonre-
viewability rule to such decisions because to do so would
extend the rule beyond its intended scope and purpose.
Therefore, ‘‘where a district court bypasses the jurisdictional
arguments and reaches the merits of a. . . dispute, the pol-
icy [of § 1447(d)] is inapplicable. Any delay caused by [the]
18
appeal . . . is a delay that must be countenanced.’’ Pelle-
port, 741 F.2d at 277.
Federal question removal jurisdiction was intended to pro-
vide a federal forum for the protection of federal rights and
to encourage the development of expertise by federal courts
in the interpretation and application of federal law. Boys
Mkts., Inc. v. Retail Clerk’s Union Local 770, 398 U.S. 235,
246 n.13 (1970).° The Court has granted certiorari to ensure
the uniform interpretation of treaties and has granted certio-
rari to ensure the uniform and consistent interpretation of the
Warsaw Convention in accordance with the express goals of
the drafters of the treaty. See Floyd, 113 L. Ed. 2d at 584-88;
Chan, 490 U.S. at 134 n.5; Saks, 470 U.S. at 399; Franklin
Mint Corp., 466 U.S. at 247, 255-56. The extension of
§ 1447(d) to encompass the District Court’s determination
that the Warsaw Convention cause of action is not exclusive
runs directly counter to the goal of uniformity sought to be
achieved by the treaty. The effect of the Eleventh Circuit
decision in this case is to allow each district court to reach its
own conclusion as to the scope and effect of the Convention.
This has resulted in inconsistent decisions which as of now
are held in the Eleventh Circuit to be completely insulated
from review.° Congress certainly did not intend to immunize
from federal appellate review a matter of treaty interpretation
by the nonreviewability rule.
The District Court effectively has subordinated a treaty of
the United States, created for the express purpose of creating
5 The extension of the nonreviewability rule to the decision in this
action not only binds Petitioners to an erroneous and adverse decision
as to the Warsaw Convention by the District Court, but frustrates,
rather than facilitates, the formation of a uniform, interpretive body
of federal law.
6 There are even conflicting decisions in the Southern District of Flor-
ida on this exclusivity issue. Compare Velasquez v. Aerovias
Nacionales de Colombia, S.A., 747 F. Supp. 670 (S.D. Fla. 1990)
(Convention cause of action is exclusive and removal proper) with
Rhymes v. Arrow Air, Inc., 636 F. Supp. 737 (S.D. Fla. 1986) (Con-
vention cause of action is not exclusive and removal improper).
———=V— ss t—“‘_O™OSCSC
19
a uniform system of liability, to a state wrongful death stat-
ute. Given the increasing frequency with which plaintiffs are
adopting this ploy to avoid the full effect of the Convention,
the issue of the reviewability of such pre-remand decisions
will recur and continue to escalate until the Court resolves
this important issue.
CONCLUSION
For these reasons, the Petition for a Writ of Certiorari
should be granted.
Respectfully submitted, \
George N. Tompkins, Jr.
Counsel of Record
CONDON & FORSYTH
1251 Avenue of the Americas
“New York, New York 10020
(212) 757-6870
Attorneys for Petitioners AEROVIAS
NACIONALES DE COLOMBIA,
S.A., AVIANCA, INC. and
COMMODORE AVIATION, INC.
Of Counsel:
Michael J. Holland
Andrew J. Harakas
Deborah A. Elsasser
Dated: October 24, 1991
APPENDIX
INDEX TO APPENDIX
Order of the Court of Appeals for the Eleventh Circuit
er
Memorandum Opinion and Order of Remand of the
United States District Court for the Southern District
of Florida (King, J.) dated January 25, 1991 and
reported at 756 F. Supp. 550 (S.D. Fla. 1991).....
PAGE
la
IN THE
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTE! CIRCUIT
>
No. 91-5197
Filed October 4, 1991
aa
MARIA BERNARDA ALVAREZ, as personal representative of
the Estate of Amanda Alvarez, Deceased and on behalf
of Pedro Alvarez and Maria Bernarda Alvarez,
Plaintiff-Appellee,
—versus—
AEROVIAS NACIONALES DE COLOMBIA, S.A.,
AVIANCA INC., AND COMMODORE AVIATION, INC.,
Defendants-A ppellants.
Appeal from the United States District Court for the
Southern District of Florida
+
Before:
FAY, HATCHETT and DUBINA,
Circuit Judges.
7
BY THE COURT:
Appellee’s motion to dismiss the appeal is GRANTED. The
district court’s conclusion regarding the exclusivity of the
remedy provided by the Warsaw Convention is inextricably
interwoven with its decision to remand the action to state
court. Accordingly, its order is not appealable. See Calderon
v. Aerovias Nacionales de Colombia, 929 F.2d 599 (11th Cir.
1991).
2a
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
No. 90-2494-ClV.
Jan. 25, 1991
ae
Maria Bernarda ALVAREZ, as Personal Representative of the
Estate of Amanda Maria Alvarez, Deceased, and on
behalf of Pedro P. Alvarez and Maria Bernarda Alvarez,
Plaintiff,
—_—V.—
AEROVIAS NACIONALES de COLOMBIA, S.A.,
Avianca, Inc., and Commodore Aviation, Inc.,
Defendants.
>
MEMORANDUM OPINION AND
ORDER OF REMAND
JAMES LAWRENCE KING, Chief Judge.
This case arises out of the tragic airplane crash of Avianca
Flight 52 in Cove Neck, New York, on January 25, 1990.
The case was originally filed as a wrongful death action in
the Circuit Court in and for Dade County, Florida. The
defendants removed the action to this court, claiming that
removal was proper because the Warsaw Convention’ pro-
vided the plaintiff’s exclusive cause of action. This case is
now before the court on the plaintiff’s motion to remand the
case to state court.
] Convention for the Unification of Certain Rules Relating to Interna-
tional Transportation by Air, concluded at Warsaw, Poland, October 12,
1929, adhered to by the United States June 27, 1934, 49 Stat. 3000, 3014,
reprinted in 49 U.S.C.App. § 1502 note (1988) (hereinafter ‘‘Warsaw Con-
vention’’).
3a
The basis for the defendants’ removal of this action to this
court stems from the fact that the accident was one of ‘‘inter-
national transportation.’’ Article 1(1) of the Warsaw Conven-
tion states: ‘‘This Convention shall apply to all international
transportation of persons, baggage, or goods performed by
aircraft for hire.’’ At the time of the crash, Flight 52 was en
route from Medellin, Colombia, to John F. Kennedy Airport
in New York. Defendants assert that, inasmuch as plaintiff’s
decedent was travelling pursuant to a ticket which provided
for ‘‘international transportation’’ within the meaning of the
Warsaw Convention, the provisions of the Warsaw Conven-
tion apply to this action and exclusively govern it.
Before delving into the issues which comprise the parties’
arguments for removal and remand of this case, the court
must first address another matter. In another case arising out
of the crash of Avianca Flight 52, the defendants removed
the action to the Southern District of Florida. Calderon v.
Aerovias Nacionales de Colombia, 738 F. Supp. 485
(S.D.Fla.1990) (Aronovitz, J.), appeal filed, No. 90-5560
(11th Cir.1990). In Calderon, Judge Aronovitz entered an
order remanding the case to state court. The defendants
appealed the decision, and oral argument before the Eleventh
Circuit Court of Appeals was heard on December 20, 1990.
Defendants have asked this court to delay ruling on the
motion to remand pending the result of the Calderon appeal,
but this court must reject that request for several reasons.
First, although it is possible that the appellate decision
could affect the outcome in this case, the oral argument in
the appellate court and the applicable precedent in the area
of remand reveal that the Eleventh Circuit is probably more
concerned with the issues of appellate jurisdiction and review-
ability than with the issues which this court faces. The Elev-
enth Circuit has also already denied a petition for mandamus
in Calderon.
Furthermore, a deferred ruling could result in a mooting of
the issue raised by the parties, due to the probability of a
transfer of this case from this jurisdiction by the Judicial
Panel on Miultidistrict Litigation. Although the defendants
have asserted that no hearing on transfer has been scheduled
4a
within the near future, the Judicial Panel on Multidistrict Lit-
igation has already transferred several cases arising from this
same air disaster to the United States District Court for the
Eastern District of New York.
Finally, it is the duty and responsibility of this court to
proceed deliberately toward a decision in this case. Should
the Eleventh Circuit reach and decide the issues now before
this court in a different manner, the parties in this case can
then seek appropriate relief.
State Law Causes of Action and the Warsaw Convention
Plaintiff filed her complaint in state court, grounding the
action in state wrongful death law and nowhere invoking any
federal law or statute as a basis for her claim. In the notice
of removal, the defendants have asserted the right to remove
this case to federal court pursuant to 28 U.S.C. §§ 1441 and
1331, claiming that the Warsaw Convention provides the
exclusive federal cause of action under the facts alleged in the
complaint. The defendants argue that their notice of removal
properly vested this court with removal jurisdiction, because
plaintiff’s attempt to plead this case under the Florida
Wrongful Death Act, without reference to federal law and
the Warsaw Convention, is simply an attempt to circumvent
an exclusively federal cause of action founded upon the Con-
vention. They argue that, in the context of a case in which
the Warsaw Convention applies, no state cause of action is
available as a theory of liability.
In support of the motion to remand to the Florida court,
however, the plaintiff argues that the Warsaw Convention
does not provide the exclusive cause of action. Rather, the
plaintiff argues that her action can proceed as a state law
cause of action that is bounded by the exclusive remedy pro-
vided for in the Warsaw Convention. Thus, the plaintiff
argues, the Warsaw Convention provides an exclusive remedy
that may preempt inconsistent remedies otherwise available
under state law, but state law theories may still provide the
cause of action. Removal would therefore be inappropriate
because the exclusive remedy limitations of the Warsaw Con-
Sa
vention would be no more than a defense to a valid state law
cause of action.
In addressing the arguments set forth by the parties in their
briefs and at oral argument, including the argument of the
amicus curiae,’ the court must address two inconsistent deci-
sions that were rendered in this district. The first decision
was reached by this court in 1986 in Rhymes v. Arrow Air,
Inc., 636 F.Supp. 737 (S.D.Fla.1986) (King, C.J.). The sec-
ond decision was reached several months ago in Velasquez v.
Aerovias Nacionales de Colombia, S.A., 747 F.Supp. 670
(S.D.Fla.1990) (Scott, J.). These two memorandum opinions
each address the issues presented in the motion to remand
sub judice, but each comes to a different conclusion as to the
exclusivity of the federal cause of action available under the
Warsaw Convention. Neither the United States Supreme
Court nor the United States Court of Appeals for the Elev-
enth Circuit has yet provided a definitive answer to this ques-
tion of exclusivity, see Floyd v. Eastern Airlines, Inc., 872
F.2d 1462, 1482 & n. 33 (11th Cir.1989), cert. granted,
U.S. , 110 S.Ct. 2585, 110 L.Ed.2d 266 (1990), but the
language and history of the Warsaw Convention, as they
have been interpreted by the courts, provide the necessary
guidance to resolve this issue.
The Cause of Action Under the Warsaw Convention
At the outset of this discussion, it is important to recognize
that the availability of a federal cause of action founded
upon the Warsaw Convention has been squarely resolved in
this circuit. See Floyd, 872 F.2d at 1469-70; see also Velas-
quez, 747 F.Supp. at 675; Rhymes, 636 F.Supp. at 739-40.
Although many initially assumed that the Warsaw Conven-
tion created a cause of action, for decades following the
United States’ adherence to the Convention, the courts of the
United States did not even interpret the Convention as creat-
2 Representing the amicus curiae, Guillermo Camargo, the law firm of
Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin filed a memo-
randum and appeared at the hearing before this court in support of the plain-
uiff’s motion to remand.
6a
ing an independent cause of action. Beginning in the late
1970’s, however, courts reexamining this issue have generally
changed course and recognized the existence of an indepen-
dent cause of action founded upon the Warsaw Convention.’
If there were no federal cause of action, this court would
need to go no further before reaching a decision to remand
this case to state court. Because a federal cause of action
exists under the Warsaw Convention, however, the court
needs to determine whether it is exclusive.
Exclusivity of Warsaw Cause of Action
In determining whether the Warsaw Convention creates the
exclusive cause of action in cases such as the instant case, it
is important to look at the history and language of the Con-
vention. The history behind the Warsaw Convention reveals
that there were two basic goals underlying the drafting of the
Convention. As the Eleventh Circuit has stated, those goals
were: (1) ‘‘to establish uniformity as to documentation such
as tickets and waybills, and procedures for dealing with
claims arising out of international transportation’’; and (2),
the more important goal at that time, ‘‘to limit the potential
liability of air carriers in the event of accidents and jost or
damaged cargo.’’ Floyd, 872 F.2d at 1467. In attempting to
implement these goals, the Convention did in fact establish
requirements for air waybills and tickets, and a limitation
was indeed placed on the liability of carriers, although this
limitation has since been modified. The Convention also
made uniform various procedural rules for claims arising
from losses that occur in international transportation.
3. See, e.g., Floyd, 872 F.2d at 1469-70; In re Mexico City Aircrash,
708 F.2d 400 (9th Cir. 1983); Benjamins v. British European Airways, 572
F.2d 913 (2d Cir. 1978), cert. denied, 439 U.S. 1114, 99 S.Ct. 1016, 59
L.Ed.2d 72 (1979); Rhymes v. Arrow Air, 636 F.Supp. at 740.
4 Agreement Relating to Liability Limitations of the Warsaw Conven-
tion and the Hague Protocol, Agreement CAB 18900, approved by CAB
Order No. E-28680, May 13, 1966, 31 Fed.Reg. 7302 (1966) (‘‘Montreal
Agreement’’).
ad pine aa
7a
Although the Warsaw Convention sets forth certain uni-
form procedural rules with respect to the filing of claims, it is
clear that the Convention does not presuppose to make such
rules completely uniform. While the Convention sets forth
rules on such matters as presumptions of liability, liability
limitations, and statutes of limitations, it also leaves many
matters to the laws of the sovereign nations that have signed
the Convention or adhered to it. In several instances, it even
expressly commands the application of the local law of the
forum. See, e.g., Warsaw Convention Arts. 28(2),° 29(2)°.
The fact that a federal cause of action has been recognized
under the Warsaw Convention does not change the fact that
the Convention leaves matters to local law. In dealing with
problems arising among sovereign nations, the Convention
appears to have been unconcerned with the manner in which
a forum determined the substance of its local law. The court
has found no evidence which would indicate that the Conven-
tion was concerned with whether the applicable local substan-
tive law was the result of state law within a federal system of
government or national law.
A few courts, including Judge Scott in Velasquez, have
held that the Warsaw Convention creates the exclusive federal
cause of action under which a plaintiff may bring action.
Many other courts,’ including this court in Rhymes, have
held that the Convention allows causes of action arising
under both state law and federal law (the Warsaw Conven-
tion), but the Convention provides the exclusive remedy that
preempts inconsistent remedies otherwise provided for under
5 **Questions of procedure shall be governed by the law of the court to
which the case is submitted.’’ Warsaw Convention Art. 28(2).
6 ‘*The method of calculating the period of limitation shall be deter-
mined by the law of the court to which the case is submitted.’’ Warsaw Con-
vention Art, 29(2).
7 In this district alone, in cases arising out of an aircrash of a Pan
American flight in 1982, eight judges remanded cases to state court. These
judges included Judge Aronovitz, Judge Atkins, Judge Davis, Judge Hast-
ings, Judge Hoeveler, Judge Kehoe, Judge Spellman, and the undersigned.
See memorandum of Amicus Curiae in Support of Plaintiff’s Motion to
Remand at 2 n. 2.
ee
8a
state law causes of action. See Floyd, 872 F.2d at 1482 n. 33
(collecting cases following these two contrary approaches).
The Eleventh Circuit has expressly declined to decide whether
the Warsaw Convention preempts state law causes of action,
but the Eleventh Circuit’s opinions reflect the distinction
between the availability of a cause of action under the Con-
vention and the exclusivity of the remedy. See Floyd, 872
F.2d at 1469-70, 1482 & n. 33°; St. Paul Insurance Co. v.
Venezuelan International Airways, Inc., 807 F.2d 1543, 1546
(11th Cir.1987) (‘The Warsaw Convention creates the cause
of action upon which [the plaintiff] relies and is the exclusive
remedy against international air carriers for lost or destroyed
cargo.’’).
Rhymes v. Arrow Air, supra, involved a case of wrongful
death, stemming from an international air disaster, in state
court based on state law. The defendants in Rhymes, as the
defendants here, removed the case based on the grounds that
the wrongful death claims necessarily presented a federal
cause of action under the Warsaw Convention. In concluding
that removal was improper, this court held that the Warsaw
Convention created the exclusive remedy, not the exclusive
cause of action, in cases to which the Convention applied.
In the analysis in Rhymes, the court focused on the history
of the Convention and, more particularly, on the language of
Article 24(1i). Article 24(1) of the Warsaw Convention states
that ‘‘any action for damages, however founded, can only be
brought subject to the conditions and limits set out in this
convention.’’ Warsaw Convention Art. 24(1) (emphasis
added).” ‘‘The best explanation for the wording of Article
8 Although the court in Floyd declined to decide the exclusive nature
of a cause of action founded under the Warsaw Convention, the court none-
theless remanded both the federal cause of action and the parallel state law
cause of action to the district court. 872 F.2d at 1467, 1490.
9 Although Subsection | of Article 24 applies to claims for damaged
baggage or goods, Subsection 2 makes claims for personal injury subject to
Subsection 1. Warsaw Convention Art. 24(2). Subsection 2 then goes on to
add that Subsection | applies ‘‘without prejudice to the questions as to who
are the persons who have the right to bring suit and what are their respective
rights.’’ Id.
9a
24(1) appears to be that the delegates did not intend that the
cause of action created by the Convention to be exclusive.
For example, in the United States, state law causes of action
may be invoked by plaintiffs injured during international air
transportation.’’ Jn re Mexico City Aircrash, 708 F.2d at 414
n. 25; see also Johnson v. American Airlines, Inc., 834 F.2d
721, 722 (9th Cir.1987) (‘‘State-law claims . . . can only be
maintained subject to the conditions and limits outlined in
the Warsaw Convention.’’); Tokio Marine & Fire Insurance
Co. v. McDonnell Douglas Corp., 617 F.2d 936, 942 (2d
Cir. 1980).
As was already noted, various courts, including the Velas-
quez court, have taken the contrary position that a cause of
action arising under the Warsaw Convention is the exclusive
federal cause of action available to plaintiffs. Instead of ana-
lyzing and distinguishing the Rhymes opinion, the only place
the Velasquez opinion even confronts Rhymes is in a brief
footnote.'° Moreover, Velasquez does not discuss the ‘‘how-
ever founded’’ language from Article 24(1), except in a foot-
note in the order on rehearing. See Velasquez, 747 F.Supp. at
678 n. 4.
Velasquez focused on the Convention’s concern for uni-
formity. Judge Scott stated that if separate state law causes
of action were allowed to supersede the Convention’s exclu-
sivity, air carriers in this country alone would be exposed to
50 separate and distinct causes of action. Jd. at 676. How-
ever, as was discussed previously, the uniformity desired by
the drafters of the Convention was not complete and utter
uniformity. The Convention itself makes provisions for the
application of local law. See supra notes 5-6 and accompany-
ing text.
Many of the other courts which state that the Warsaw
Convention’s cause of action is exclusive have done so with-
out much, if any, discussion; others have simply addressed
10 ‘*The Court recognizes that its opinion today is contrary to the hold-
ing reached by Chief Judge King in Rhymes v. Arrow Air, Inca, 636 F.Supp.
737 (S.D.Fla. 1986). However, having thoroughly considered the reasoning
employed in Rhymes the Court must respectfully disagree and reach a con-
trary conclusion.’’ Velasquez, 747 F.Supp. at 675 n. 15.
10a ~
the issue in dicta. Moreover, these cases also generally fail to
analyze the ‘however founded’’ language of Article 24(1) and
the distinction between remedies and causes of action under
the Convention.
By creating an exclusive remedy, the Convention achieved
the uniformity desired while still allowing the use of state
law. Comments expressed by delegates at the early stages of
the negotiations leading up to the Convention may indeed be
reflective of a desire to eliminate all reference to the laws of
the various sovereign nations in an effort to achieve complete
uniformity, but the Convention clearly departed from the
desires of those delegates as evidenced by the provisions that
call for the use of local law. Those courts who rely on such
comments fail to give the proper import to the Convention’s
‘‘however founded’’ language and to the express references to
state law. Their concerns about uniformity are nonetheless
satisfied by the existence of the Convention’s exclusive rem-
edy, which, among other things, allows claims not otherwise
available under local law to be filed under the Convention
and which limits the liability that can be imposed on carriers
for claims brought under local law.''
For the reasons set forth above, this court holds that the
Warsaw Convention does not create the exclusive cause of
action in those cases to which it is applicable.
Preemption
Having determined that the Warsaw Convention does not
create an exclusive cause of action, this court next addresses
whether the defendants can properly remove this case. In
11 As an exclusive remedy, the Warsaw Convention creates a cause of
action which allows suit where a cause of action would not otherwise be
available. This result satisfies the uniformity concern of those delegates who
desired to assure that relief would be available, even in nations with laws on
compensation that ‘‘dragged’’ behind the laws of other nations. Yet, the
‘*however founded’’ language of Article 24 allows local causes of action
“subject to the conditions and limits set out in this convention.’’ Warsaw
Convention Art. 24(1). The Convention therefore achieves uniformity by cre-
ating a remedy where none exists, as well as by limiting the remedy otherwise
available under local laws.
| connec
lla
making this determination, the court must look to the plain-
tiff’s complaint. In her complaint, the plaintiff has set forth
a claim solely under the Florida Wrongful Death Act, thereby
choosing to forego any federal cause of action founded under
the Warsaw Convention. As such, the only basis for removal
to this court would be founded upon the ‘‘well-pleaded com-
plaint’’ rule. As this court has stated in Rhymes, however,
because the Warsaw Convention does not provide the exclu-
sive cause of action in cases to which it applies, the plaintiff
may, at her election, set forth her claim solely under a state
law theory. If, as here, the plaintiff elects to sue solely upon
an available state law cause of action, the defendants cannot
remove merely by asserting a preemption defense that would
limit and condition the state law cause of action. See Okla-
homa Tax Commission v. Graham, 489 U.S. 838, 109 S.Ct.
1519, 1520-21, 103 L.Ed.2d 924 (1989); Metropolitan Life
Insurance Co. v. Taylor, 481 U.S. 58, 63-66, 107 S.Ct. 1542,
1546-47, 95 L.Ed.2d 55 (1987); Franchise Tax Board v. Con-
struction Laborers Vacation Trust, 463 U.S. 1, 103 S.Ct.
2841, 77 L.Ed.2d 420 (1983); Gully v. First National Bank in
Meridian, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936);
Rhymes, 636 F.Supp. at 742 (‘‘Pleading a defense under the
Warsaw Convention as the Defendants have done will not lay
a proper basis for removal to this court.’’).
The plaintiff and the amicus curiae have also argued that
removal is inappropriate and that a remand is mandated even
if this court were to hold that the Warsaw Convention’s
cause of action is the exclusive cause of action available.
Because a ruling on this issue is unnecessary and because it
would be based on an interpretation of the Warsaw Conven-
tion that this court has declined to follow, this court chooses
not to address this issue. The court further wishes to make
clear that it expresses no view on the merits of this argument,
and this opinion should not be interpreted as either approv-
ing or disapproving of the argument set forth by the plaintiff
and the amicus curiae.
Because the plaintiff has set forth a cause of action under
state law without bringing in any federal theory and because
the Warsaw Convention’s cause of action is not exclusive, the
12a
plaintiff’s complaint does not arise under federal law so as to
confer removal jurisdiction pursuant to 28 U.S.C. §§ 1331
and 1441. While the Warsaw Convention’s exclusive remedy
may indeed serve to preempt inconsistent and contradictory
provisions of the plaintiff’s state law theory, this preemption
arises only as a defense to the plaintiff’s claims. Accordingly,
after careful consideration of this matter, this court
ORDERS and ADJUDGES that the plaintiff's motion for
remand be, and the same hereby is, GRANTED. This case is
hereby REMANDED to the Circuit Court for the Eleventh
Judicial Circuit in and for Dade County, Florida.
DONE and ORDERED.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.