# Petition for Writ of Certiorari — Aerovias Nacionales de Colombia, S. A. v. Alvarez

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2932%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1991
- **Citation:** 502 U.S. 1013

## 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

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2932%3A1. Public record. Not legal advice.