Petition for Writ of Certiorari — Eastern Airlines, Inc. v. Floyd

89- 1598,

No.

in the

Supreme Court

of the

United States

OCTOBER TERM, 1989

EASTERN AIRLINES, INC.,

Petitioner,

versus

ROSE MARIE FLOYD and

TERRY FLOYD, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

JOHN MICHAEL MURRAY,

Counsel of Record,

AURORA A. ARES

On the Brief: THORNTON, DAVID, MURRAY,

LINDA SINGER STEIN RICHARD & DAVIS, P.A.

April 9, 1990 2950 S.W. 27th Avenue, Suite 100

Miami, FL 33133

(305) 446-2646

Attorneys for P. iitioner

QUESTIONS PRESENTED

1. Whether, in view of the presumed liability under

the Warsaw Convention for death, wounding or any other

bodily injury, an air carrier is liable for fright, psychic injury

or emotional distress absent objective bodily injury or absent

any physical manifestation of injury?

2. Whether the Montreal Agreement, which modifies

the Warsaw Convention and which eliminates an air carrier’s

“due care” defense, makes international air carriers the

insurers of their passengers against say fright, psychic injury

or emotional distress absent a showing of objective bodily

injury or absent physical manifestations of injury?

Ie MANTZ and HAROLD D. MANTZ, as guardians

LIST OF ALL PARTIES TO THE PROCEEDING oak iam, ii A OLD

The parties to the proceedings below were the MANTZ, GREGORY D. MANTZ, by and through

petitioner, Eastern Airlines, Inc.,' and the following his father HAROLD D. MANTZ.

plaintiffs below and respondents to this petition (listed as

they appeared in the style of the case):

ROSE MARIE FLOYD and TERRY FLOYD, her :

husband, CONNIE GALE and MICHAEL GALE,

her husband, MICHAEL GALE and CONNIE

GALE, his wife, GLORIA PATTERSON,

EDMOND PATTERSON, THOMAS J. NOLAN,

ROBERT SCHARHAG, EUGENE H. CHAMP,

FREDERICK W. HOEHLER IV, SALLY ANN

COLLINS, MICHAEL R. DRAMIS, SANDY DIX

and GARY DIX, her husband, DANA DIX, by and

through her parents GARY DIX and SANDY DIX,

as guardians and next friends, ALEXANDER DIX,

by and through his parents GARY DIX and

SANDY DIX, as guardians and next friends,

GERRI ASH SEIF, SUSAN ROONEY and

WILLIAM ROONEY, her husband, JANET

JACOBS and BRUCE JACOBS, her husband,

ALEXANDER EMBRY, SALIM KHOURY and

DEBORAH KHOURY, his wife, BRUCE JACOBS

and JANET JACOBS, his wife, MYRIAM

CARRASCO (f/k/a MYRIAM RILEY), TERRY

FLOYD and ROSE MARIE FLOYD, GARY DIX

and SANDY DIX, his wife, SALIM KHOURY and

DEBORAH KHOURY, his wife, GREGORY

MANTZ, by and through his parents, NETTA

‘In response to Rule 28.1, Petitioner Eastern states that it is a

subsidiary of Texas Air Corporation and that the following is a list of

Eastern's subsidiaries: Airport Ground Services Corporation, Dorado

Beach Development, Inc., Dorado Beach Estates, Inc., EAL, Inc., EAL

Properties, Inc., Eastern Airlines Leasing, Inc., Eastern Airlines of Puerto

Rico, Inc., lonosphere Clubs, Inc., JCSS Corporation, Protective Services

Corporation, Terminal Sales Company.

: —, ¥

ii lla

TABLE OF CONTENTS

EA ee ee

List of All Parties to the Procecding...................

EE SS Ne ee

aii a a coi nin od eae u adie cawenn Cammns

ee neice ce teguaed édedeuddedierss ete

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Bee PR ID occ cccccsccccecccctcescccsess

Reasons for Granting the Writ ....................005.

THE PANEL OPINION BELOW IS ADMITTED-

LY IN DIRECT CONFLICT WITH THE NEW

YORK COURT OF APPEALS’ DECISION IN

ROSMAN V. TRANS WORLD AIRLINES ON THE

PROPER CONSTRUCTION OF THE WARSAW

CONVENTION’S LIABILITY PROVISION ......

THE FEDERAL AND STATE COURTS ARE IN

DISARRAY OVER THE INTERPRETATION OF

SENET Satbveke sc cccecdunabetabiassbinaeess

THE DECISION BELOW RAISES AN IMPOR-

TANT QUESTION BECAUSE IT BROADLY

CONSTRUES A TREATY PROVISION AND

FUNDAMENTALLY INCREASES THE LIABILI-

TY OF ALL INTERNATIONAL AIR CARRIERS

SERVING THE UNITED STATES...............

iv

I]

TABLE OF CONTENTS—Continued

IV. THE COURT MAY DESIRE TO CONSIDER AN

ADDITIONAL QUESTION CONCERNING

WHETHER THE WARSAW CONVENTION IS

THE EXCLUSIVE PASSENGER REMEDY FOR

ACCIDENTAL INJURIES OCCURRING IN IN-

TERNATIONAL AIR TRANSPORTATION .....

CL 4 oh choad pio adedddekcoddedéeabeeses

Page

TABLE OF AUTHORITIES

Cases

Air France v. Saks,

STO UB. TFS (EGG) osc cccccccccccscccccees

Benjamins v. British European Airways,

572 F.2d 913 (2d Cir. 1978), cert. denied,

439 U.S. 1114 (1979)... cece ec eee eeeeenes

Block v. Compagnie Nationale Air France,

386 F.2d 323 (Sth Cir. 1967), cert. denied,

392 U.S. 905 (1968) .......... cece cece ewes

Boehringer-Mannheim Diagnostics v. Pan

American World Airways,

737 F.2d 456 (Sth Cir. 1984)...............

Borham v. Pan American World Airways, Inc.,

No. 85 Civ. 6922 (CBM) (S.D. N.Y. 1986)

(available in 19 Avi. Cas. 18,237 and on

1986 Westlaw 2974) ......... ccc ccee ee eeees

Brown v. Cadillac Motor Car Division,

468 So.2d 903 (Fla. 1985)..............0005

Burnett v. Trans World Airlines, Inc.,

368 F.Supp. 1152 (D. N.M. 1973)..........

Chan v. Korean Air Lines, Ltd.,

Day v. Trans World Airlines,

528 F.2d 31 (2d Cir. 1975), cert. denied,

429 U.S. 890 (1976) ..... ccc ceceeceeceeeees

Eastern Airlines, Inc. v. King,

—___. So.2d ___., 15 F.L.W. 61

. SG PPP OTTTTTITTT TTT ee

Floyd vy. Eastern Airlines, Inc.,

872 F.2d 1462 (11th Cir. 1989) ............

vi

U.S. __., 109 S.Ct. 1676 (1989) .....

17

12

14

11

15

TABLE OF AUTHORITIES—Continued

Cases Page(s)

Husserl v. Swiss Air Transport Co.,

388 F.Supp. 1238 (S.D. N.Y. 1975) ........ 9, 12,

13, 15, 18

In Re Aircrash in Bali, Indonesia on April 22,

1974,

684 F.2d 1301 (9th Cir. 1982).............. 17

Johnson v. American Airlines, Inc.,

834 F.2d 721 (9th Cir. 1987)............... 17

Karfunkel v. Compagnie Nationale Air France,

427 F.Supp. 971 (S.D. N.Y. 1977).......... 12, 13, 18

Krystal v. British Overseas Airways Corporation,

403 F.Supp. 1322 (C.D. Cal. 1975)......... 12, 13

Metropolitan Life Insurance Company v.

McCarson,

467 So.2d 277 (Fla. 1985).................. 6

Palagonia v. Trans World Airlines,

110 Misc.2d 478, 442 N.Y.S.2d 670

Se i Mic enccncccnccscevesce 12, 15

Rosman v. Trans World Airlines, Inc.,

34 N.Y.2d 385, 358 N.Y.S.2d 97, 314

N.E.2d 848

at ieee Cadckatsdbuededhécote i A

8, 10, 11,

12, 1S

Trans World Airlines v. Franklin Mint Corp.,

Ge SS IED odciccacctecesstcevcess 3

vii

TABLE OF AUTHORITIES — Continued

STATUTES, TREATIES AND REGULATIONS

BB UDA. Fear esscscccsevsecsscccccce:

Convention for the Unification of Certain Rules

Relating to International Transportation by Air,

Oct. 12, 1929. 49 Stat. 3000, T.S. No. 876 (1934),

reprinted in note following 49 U.S.C.A. §1502

(Warsaw Convention) .................2eeeeeeees

AID DT ccccccccccccccscccccccccccecceces

ic csnteeethecensnaesuscasnebennes

PM iintncn ctschanghndes nvévedseussens

ED db ncuctbekdbindudndsddddidcetes<

Agrcement Relating to Liability Limitations of the

Warsaw Convention and the Hague Protocol,

Agreement CAB 18900, 31 Fed.Reg. 7302 (1966),

note following 49 U.S.C. App. §1502 (Montreal

FEE pbdticakenncgheséeencnnshusens vec over

OTHER AUTHORITIES

Prosser & Keeton, The Law of Torts,

(W. Keeton Sth ed. 1984).......................

viii

Page(s)

passim

6, 10,

15, 16

No.

in the

Supreme Court

of the

United States

OCTOBER TERM, 1989

EASTERN AIRLINES, INC.,

Petitioner,

versus

ROSE MARIE FLOYD and

TERRY FLOYD, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Petitioner, Eastern Airlines, Inc., (“Eastern”) requests

that a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Eleventh Circuit entered in this action on May 5, 1989,

which reversed a final judgment of the United States

District Court for the Southern District of Florida.

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A-1-54) is

reported at 872 F.2d 1462. The opinion of the district court

(Pet. App. B-1-21) is reported at 629 F.Supp 307.

JURISDICTION

The opinion of the court of appeals (Pet. App. A-1-2)

was entered on May 5, 1989. A timely petition for rehearing

with a petition for rehearing en banc was denied on January

11, 1990 (Pet. App. D-1-2). The jurisdiction of this Court

rests upon 28 U.S.C. §1254 (1).

TREATY PROVISION INVOLVED

The treaty provision involved is Article 17 of the

Warsaw Convention, which Convention is formally known as

the Convention for the Unification of Certain Rules Relating

To International Transportation By Air, October 12, 1929,

49 Stat. 3000, T.S. No. 876 (1934), reprinted in 49 U.S.C.A.

Section 1502 note (1970). Article 17 is set forth below:

The carrier shall be liable for damage sustained in

the event of the death or wounding of a passenger

or any other bodily injury suffered by a passenger,

if the accident which caused the damage so

sustained took place on board the aircraft or in the

course of any of the operations of embarking or

disembarking.

STATEMENT OF THE CASE

Respondents Floyd', were passengers on an Eastern

flight from Miami, Florida to Nassau, Bahamas. Shortly

after takeoff, one of the aircraft's three engines failed. The

plane was turned around for a landing in Miami, and on the

return, the aircraft’s other two engines failed. As the aircraft

lost altitude because of the engine failure, the passengers

‘As there were 25 consolidated cases in this action, Eastern wil! refer

to all of the plaintiff/respondents collectively as “Floyd”.

and crew were prepared for ditching. The flight crew

subsequently restarted one of the engines, and the aircraft

safely landed at Miami International Airport.

Floyd brought actions for damages alleging mental pain

and anguish, fright, distress and inability to lead normal

lives as a result of the incident.? The complaints did not

allege that plaintiffs suffered any bodily or physical injury or

any physical manifestations of psychic injury.

The Warsaw Convention. The Convention is a

treaty governing international aviation to which more than

120 nations now adhere. The Convention’s primary purposes

are to establish a uniform body of rules to govern

international aviation and to set limits on carrier liability.

Trans World Airlines v. Franklin Mint Corp., 466 U.S. 243

(1984). The Convention applies to “all international

transportation of persons, baggage, or goods performed by

aircraft for hire.” (Warsaw Convention, Article 1.) (Emphasis

supplied.) It establishes uniform rules for passenger damage

claims. Block v. Compagnie Nationale Air France, 386 F.2d

323, 330 (5th Cir. 1967), cert. denied, 392 U.S. 905 (1968).

The controversy focuses upon the proper construction

of Article 17 of the Convention, which creates a presumption

of carrier liability for death or bodily injury as follows:

The carrier shall be liable for damage sustained in

the event of the death or wounding of a

*Another passenger on this flight whose case was not consolidated

herewith, proceeded in a Florida state court. That case was recently

decided by the Florida Supreme Court, Eastern Airlines, Inc. v. King,

So.2d ____., 15 F.L.W. 61 (Fla. Feb. 15, 1990) and is also reprinted

in Pet. App. C-1-14. The allegations of that complaint are identical to the

facts here. The Florida court determined that the plaintiff in King failed

to state a claim under Florida law for intentional infliction of emotional

distress, but followed the Eleventh Circuit Court of Appeals in Floyd in

finding that the plaintiffs did have a claim for recovery under the Warsaw

Convention for pure emotional injury unaccompanied by physical

manifestations.

passenger or any other bodily injury suffered

by a passenger, if the accident which caused the

damage so sustained took place on board the

aircraft or in the course of any of the operations of

embarking or disembarking.

Since the text of the Convention is in the French

language, the relevant French text is quoted as follows:

Le transporteur est responsable du dommage

survenu en cas de mort, de blessure ou de toute

autre lesion corporelle subie par un voyageur

lorsque l’accident qui a cause le dommage s’est

produit a bord de l’aeronef ou au cours de toutes

operations d’embarquement et de debarquement.

The phrase “lesion corporelle” is literally translated as

“bodily injury.” 49 Stat. 3014, reprinted at note following 49

U.S.C. Section 1502. The decision below broadly construed

“lesion corporelle” to encompass recovery for fright, psychic

injury or emotional distress unaccompanied by any “wound-

ing. . .or any other bodily injury,” and unaccompanied by

physical manifestations of psychic injury. (App. A-22). The

decision below expands an air carrier’s liability well beyond

that intended by the framers of the Convention.

The Montreal Agreement. Because of dissatisfac-

tion in the United States with the Convention’s low limits of

liability,’ the major international air carriers, at the urging of

the United States State Department, met in Montreal, to in-

crease their liability limits. This arrangement became known

as the “Montreal Agreement.’* It modifies the Convention

only as the terms of the Convention permit it to be modified

and only in accordance with the contracting carriers’ intent.

"The liability limit was fixed at $8,300 by the Convention. Chan v.

Korean Airlines, Ltd., _.._ U.S. _.__, 109 S.Ct. 1676, 1678 (1989).

‘Officially titled: Agreement Relating to Liability Limitations of the

Warsaw Convention and the Hague Protocol, Agreement CAB 18900, 31

Fed. Reg. 7302 (1966), note following 49 U.S.C. App. §1502.

In the Montreal Agreement, the signatories agreed to

include within their conditions of carriage and tariffs a

provision raising the liability limit to $75,000 on

international flights serving the United States. The parties

further agreed to include a provision waiving the right to

assert the “due care” defense of Article 20, “with respect to

any claims arising out of the death, wounding or other boduy

injury to a passenger. . . .” See also, Day v. Trans World

Airlines, 528 F.2d 31 (2d Cir. 1975), cert. denied, 429 U.S.

890 (1976).

Therefore, the Montreal Agreement is a special contract

pursuant to Article 22(1) of the Convention between the

airline signatories and their passengers imposing on air

carriers liability for their passengers’ bodily injuries without

a showing of fault.’ The Montreal Agreement did not amend

Article 17; it did not modify the phrase “lesion corporelle.”

In fact, the drafters did not discuss or define the phrase

“lesion corporelle” at either the Warsaw Convention or

during the Montreal Agreement. Rosman v. Trans World

Airlines, Inc., 34 N.Y.2d 385, 358 N.Y.S.2d 97, 105, 314

N.E.2d 848, 854 (N.Y. 1974). However, despite the fact that

the parties to the Montreal Agreement did not intend to

expand their liability under Article 17, the Eleventh

Circuit’s decision below has the effect of making air carriers

absolutely liabie for a broadened category of injuries without

a showing of fault and without a showing of physical

manifestations of injury.

‘An air carrier has been held absolutely liable for its passengers’ death

or bodily injuries occurring during an incident of international

transportation even when the injuries were caused by a third party. Day v.

Trans World Airlines, Inc., supra, 528 F.2d at 33 (2d Cir. 1975) (in suit

against airline for damages resulting from terrorist attack, only inquiry

was whether passengers were injured and whether they were injured on an

international flight).

The defense of contributory negligence is stil] available under

Warsaw Convention, Article 21. The death or bodily injury must be

caused by an “accident.” Air France v. Saks, 470 U.S. 392 (1985).

The Proceedings Below. The actions commenced

in state court and were removed pursuant to the federal

court’s treaty jurisdiction and consolidated. (App. B-13).

Floyd’s complaints sought damages for purely emotional

injury pursuant to four different theories of liability: three

state law theories and one federal. The complaints contained

counts for breach of contract, negligence, and entire want of

care (or intentional tort). In the federal count, the complaint

sought recovery pursuant to Article 17 of the Warsaw

Convention. The complaints did not allege that any plaintiff

sustained any physical or bodily injury or impact. Under

Florida law, recovery for emotional distress caused by simple

negligence requires allegations of discernible and

demonstrable physical injury. Brown v. Cadillac Motor Car

Division, 468 So.2d 903 (Fla. 1985). Recovery for intentional

infliction of emotional distress is precluded unless the

conduct is found to be “so outrageous in character, and so

extreme in degree, as to go beyond all possible bounds of

decency. . . .” Metropolitan Life Insurance Company v.

McCarson, 467 So.2d 277 (Fla. 1985); Eastern Airlines, Inc.

v. King, at App. D. Therefore, Eastern moved for judgment

on the pleadings based upon Floyd's failure to state a claim

for which relief could be granted.‘

The district court held that the allegations in the

complaint failed to establish any intentional or willful

misconduct on the part of Eastern in connection with its

maintenance of the aircraft. Therefore, because recovery for

mental distress pursuant to the breach of contract count and

one of the two tort counts was dependent upon a finding of

willful misconduct, the district court held that Floyd failed

to state a cause of action. (App. B-2-13). As to the Warsaw

Convention count, the district court, relying on Burnett v.

‘Generally, the cause of action for mental distress contains certain

safeguards, generally requiring, inter alia, a showing of physical injury,

physical manifestation of psychic injury or some extreme or outrageous

misconduct. Prosser & Keeton, The Law of Torts, 60-65, 359-361 (W.

Keeton 5th ed. 1984).

Trans World Airlines, Inc., 368 F.Supp. 1152 (D. N.M.

1973), concluded that “mental anguish alone is not

compensable under the Warsaw Convention.” (App. B-13).’

The Eleventh Circuit reversed. As to the state law

counts, the court held that it was bound by the decision of a

Florida appellate court in a companion case holding that the

allegations against Eastern stated a cause of action under

Florida law for intentional infliction of emotional distress."

As to the Warsaw Convention count, it expressly rejected the

analysis and conclusions of the New York Court of Appeals

in Rosman v. Trans World Airlines, Inc., 34 N.Y.2d 385, 358

N.Y.S.2d 97, 314 N.E.2d 848 (N.Y. 1974) and the District of

New Mexico in Burnett v. Trans World Airlines, Inc.,

supra. It held that the “Convention provides recovery for

purely emotional injuries unaccompanied by physical

injury.” (App. A-14). The court also held that a passenger

could recover compensatory damages from an air carrier for

pure emotional injury in excess of the $75,000 liability limits

if the carrier acts with willful misconduct.

REASONS FOR GRANTING THE WRIT

Certiorari should be granted to resolve a direct conflict

involving the interpretation of a federal treaty. The

Eleventh Circuit Court of Appeals and the New York Court

of Appeals and the highest courts of Florida and New York

are in conflict over an important question affecting all

international air transportation. The Eleventh Circuit has

construed the fundamental liability provision of the

Convention to include recovery for pure emotional injury

"Absent allegations of discernible and demonstrable physical injury,

the plaintiffs did not state a cause of action for negligent infliction of

emotional distress. (App. B-4-5). The plaintiffs did not appeal the

dismissal of their Florida breach of contract and negligence claims. (App.

A-3).

"That decision was subsequently reversed. The Florida Supreme

Court held that Eastern'’s conduct herein does not rise to intentional or

willful and wanton misconduct. (App. C-1-14).

unaccompanied by physical injury oor physical

manifestations of psychic injury. Because under the Warsaw

Convention and the Montreal Agreement an air carrier is

presumptively and strictly liable for its passenger's

accidental in-flight injuries, the decision below imposes upon

international air carriers potentially unlimited, strict

liability for its passengers’ purely subjective emotional

injuries. The liberal construction of the Warsaw Convention

adopted by the Eleventh Circuit makes air carriers the

insurers of their passengers against any emotional trauma.

This construction is not supported by the language of the

Convention or the Montreal Agreement. It seriously

undermines the purposes of uniformity and limitation of

liability that the Convention was designed to achieve.

THE PANEL OPINION BELOW IS ADMIT-

TEDLY IN DIRECT CONFLICT WITH THE

NEW YORK COURT OF APPEALS’ DECI-

SION IN ROSMAN V. TRANS WORLD AIR-

LINES ON THE PROPER CONSTRUCTION

OF THE WARSAW CONVENTION'S LIA-

BILITY PROVISION.

The decision below is squarely in conflict with the New

York Court of Appeals in Rosman v. Trans World Airlines,

Inc., supra, 34 N.Y.2d 385, 358 N.Y.S.2d 97, 314 N.E.2d 848

(N.Y. 1974). Both courts interpret the terms of Article 17 to

the Warsaw Convention, but the decision of the Eleventh

Circuit effectively concludes that any emotional trauma,

without accompanying physical injury, is compensable.

The Eleventh Circuit based its analysis on what it

perceived to be the French legal meaning of “lesion

corporelle.” While noting that the issue has “confounded

courts and commentators for many years. . ..” the court

nonetheless concluded that the phrase “bodily injury”

includes any “personal” injury suffered by a person,

including “emotional injury unaccompanied by physical

trauma.” (App. A-29).

The court stated:

“. . [TJhe drafters did not intend to exclude any

particular category, common law or civil law, of

damages. If they had, it seems likely that they

would have referred to the two basic types of

damages in French law, dommage materiel (bodily

injury) and dommage moral (mental injury), rather

than using the term lesion corporelle, which does

not readily evoke a sharp distinction of French

law.”

(App. A-16 n. 16).

In a leap of logic, then the court concluded that

language which encompasses both mental and physical

injury permits recovery for mental injury absent physical

injury.

Additionally, the Eleventh Circuit court relied heavily

on Husserl v. Swiss Air Transport Co., 388 F.Supp. 1238

(S.D. N.Y. 1975), the leading case holding that a passenger

may recover for mental injury alone under Article 17.

However, Husserl was decided before Benjamins v. British

European Airways, 572 F.2d 913 (2d Cir. 1978). cert. denied,

439 U.S. 1114 (1979), which held that the Warsaw

Convention creates a cause of action. Prior to Benjamins,

the Second Circuit had held that the Warsaw Convention

did not create a cause of action but merely imposed limits on

state law causes of action. Husserl held that “mental injury

alone should be compensable [under the Warsaw

Convention], if otherwise applicable substantive [state] law

provides an appropriate cause of action.” 388 F.Supp. at

1251. The Eleventh Circuit ignores the fact that Husser/ was

decided in the context of state law remedies containing such

safeguards on the recovery for pure emotional injury as the

showing of physical injury, physical manifestation of psychic

injury or extreme or outrageous misconduct by the

tortfeasor. Prosser & Keeton, The Law of Torts, 60-65, 359-

361 (W. Keeton 5th ed. 1984). By imposing the Husserl

holding onto the Warsaw Convention’s no-fault liability

regime, the Eleventh Circuit court has created an anomalous

cause of action imposing on international air carriers virtual

strict and potentially unlimited liability for what is

essentially a subjective injury.

Squarely in conflict with Floyd is Rosman v. Trans

World Airlines, Inc., which involved an action to recover for

mental distress resulting from an airplane hijacking. The

Rosman court limited the air carrier’s liability to those

“palpable, objective bodily injuries, including those caused

by the psychic trauma of the hijacking, and for the damages

flowing from those bodily injuries, but not for the trauma as

such or for the nonbodily or behavioral manifestations of

that trauma.” 314 N.E.2d at 857. In construing the words

“bodily injury,” the Rosman court stated:

We deal with the term as used in an international

agreement written almost 50 years ago, a term

which even today would have little significance in

the treaty as an adjective modifying “injury”

except to import a distinction from “mental”. In

our view, therefore, the ordinary, natural meaning

of “bodily injury” as used in article 17 connotes

palpable, conspicuous physical injury, and excludes

mental injury with no observable “bodily”, as

distinguished from “behavioral”, manifestations.

314 N.E.2d at 855. (Emphasis supplied.)

The effect of interpreting “lesion corporelle” as

including emotional trauma unaccompanied by physical

manifestations results in an “abandonment” of “the

ordinary and natural meaning of the language of Article 17”.

Id. at 855.

10

Moreover, the Rosman court emphasized that, under

the Montreal Agreement, “participating air carriers agreed

to accept liability imposed upon them by Article 17 without

fault.” 314 N.E.2d at 851. The court thus posited the

relevant issue as whether “by virtue of [an air carrier’s]

absolute liability for death or wounding . . . or any other

bodily injury” Article 17 permitted recovery for purely

emotional injury. (Emphasis supplied.) The court analyzed

the issue in the context of the strict liability regime imposed

upon air carriers under the Warsaw Convention and the

Montreal Agreement, and properly declined to create a

cause of action divorced from the traditional limitations

attendant to the recovery for pure mental distress.

II.

THE FEDERAL AND STATE COURTS ARE

IN DISARRAY OVER THE INTERPRETA-

TION OF ARTICLE 17.

In addition to the conflict between Floyd and Rosman

on the proper interpretation of Article 17, there exists direct

conflict on the issue presented herein between two state

courts of last resort. The New York Court of Appeals’

decision in Rosman is in direct conflict on the issue with the

Florida Supreme Court’s decision in Eastern Airlines, Inc. v.

King, (App. C-1-14). In a case arising out of the same

incident involved sub judice, the Florida Supreme Court, in

a conclusory opinion, held that Article 17 permits recovery

for pure emotional injury. (App. C-8). The highest courts of

Florida and New York are, therefore, in disagreement over

the proper interpretation of Article 17.

Nor is the issue settled by Rosman for the state courts

of New York. In Palagonia v. Trans World Airlines, 110

Misc.2d 478, 442 N.Y.S.2d 670 (N.Y. Sup. Ct. 1978), a

hijacking case, a New York trial court declined to follow the

ruling of its own highest court on the interpretation of

Article 17. The Palagonia court did not deem itself bound by

11

the Rosman decision because that court had not held an

evidentiary hearing on the issue of the French legal meaning

of “lesion corporelle.” After hearing conflicting evidence

from experts, the court concluded that “lesion corporelle’

includes the concept of mental injury as a recoverable

damage, even in the absence of a concomitant physical

manifestation.” Jd. at 671.

Similarly, the federal district courts are in conflict over

the issue and they offer a variety of rationales for their

different conclusions. For example, the district court in

Burnett v. Trans World Airlines, Inc., 368 F.Supp. 1152 (D.

N.M. 1973), like the state court in Palagonia, conducted an

evidentiary hearing on the French legal meaning of the

words “lesion corporelle.” The court in Burnett, however,

reached a result contrary to the Palagonia court, concluding

that mental anguish alone was not encompassed within the

French legal meaning of “lesion corporelle.” 368 F.Supp. at

1156.

In conflict with Burnett are three decisions of the

District Court for the Southern District of New York and

one decision of the Central District of California. Borham v.

Pan American World Airways, Inc., No. 85 Civ. 6922 (CBM)

(S.D. N.Y. 1986) (available in 19 Avi. Cas. 18,237 and on 1986

Westlaw 2974), Karfunkel v. Compagnie Nationale Air

France, 427 F.Supp. 971 (S.D. N.Y. 1977); Krystal v. British

Overseas Airways Corporation, 403 F.Supp. 1322 (C.D. Cal.

1975); Husserl v. Swiss Air Transport, 388 F.Supp. 1238

(S.D. N.Y. 1975). The Husserl court based its expansive

reading of “lesion corporelle” on its conclusion that the

Warsaw Convention did not preclude resort to state law

remedies for types of damages not expressly enumerated in

Convention. Therefore, a broad and inclusive reading of the

types of injuries subject to the Convention’s liability

limitations, precluded resort to state law remedies and

promoted the Convention’s goals of uniformity and liability

limitation.

12

Acting out of a similar concern, the court in Karfunkel

followed Husserl, and concluded that:

The goal of the Warsaw Convention was to create

uniformity in actions for damages arising from

international air accidents. Though there is an

indicated difference of opinion on the question, it

seems that better view that all claims for damages

for personal injuries suffered by a passenger in an

“accident”, whether physical or mental, be resolved

in one action under the Convention.

427 F.Supp. at 976-77.

The court in Krystal also followed Husserl but added an

additional basis for its conclusion. In Krystal, the district

court examined the actual Notice of the Convention’s

limitation required to be given passengers under the

Montreal Agreement. The court found that the Notice

included the wording “personal injury” instead of “bodily

injury” and concluded that this clarified the intended

meaning of the phrase in Article 17 to encompass recovery

for purely emotional injury. 403 F.Supp. 1322.

Because of the complete disarray of the state and

federal courts in resolving this fundamental issue involving a

treaty, this Court should review the decision of the Eleventh

Circuit Court of Appeals so that a uniform and consistent

standard will be available to guide future courts and

litigants.

13

III.

THE DECISION BELOW RAISES AN IM-

PORTANT QUESTION BECAUSE IT

BROADLY CONSTRUES A TREATY PRO-

VISION AND FUNDAMENTALLY _iIN-

CREASES THE LIABILITY OF ALL INTER-

NATIONAL AIR CARRIERS SERVING THE

UNITED STATES.

The decision below departs from this Court’s rules for

the proper construction of the Warsaw Convention.

Recently, in Chan v. Korean Air Lines, Ltd., ___. U.S. .

109 S.Ct. 1676, 1683-1684 n. 5, (1989), this Court held that

the courts should be governed by the text of the Warsaw

Convention, and that its most natural meaning controls

unless contradicted by clear drafting history. In holding that

“where the text [of the Warsaw Convention] is clear. . . we

have no power to insert an amendment,” this Court quoted

Justice Story as follows:

‘{Tjo alter, amend, or add to any treaty, by

inserting any clause, whether small or great,

important or trivial, would be on our part an

usurpation of power, and not an exercise of judicial

functions. It would be to make, and not to construe

a treaty. Neither can this Court supply a casus

omissus in a treaty, any more than in a law. We are

to find out the intention of the parties by just rules

of interpretation applied to the subject matter; and

having found that, our duty is to follow it as far as it

goes, and to stop where that stops — whatever may

be the imperfections or difficulties which it leaves

behind.” The Amiable Isabella, 6 Wheat 1, 71, 5

L.Ed 191 (1821).°

109 S.Ct. at 1683-1684.

*Also cited at 19 U.S. 1 (1821).

14

AR A aN TS mmc

In a departure from this Court’s rules for proper treaty

construction, the Eleventh Circuit has ignored the clear and

natural meaning of the phrase “bodily injury” and amended

it to mean pure fright, mental distress or emotional injury

absent bodily injury, impact or absent physical

manifestations of injury. The Eleventh Circuit’s holding is

not supported by the “clear drafting history” of the Warsaw

Convention. See, e.g., Floyd, (App. A-18) (“Unfortunately,

the history of the drafting of the Warsaw Convention with

respect to claims for mental injury is not helpful.”). Instead,

it relies upon cases containing the conflicting conclusions of

experts who are in admitted disagreement on the proper

construction of the words “bodily injury.” See: Palagonia v.

Trans World Airlines, Inc., 110 Misc.2d 478, 442 N.Y.S.2d

670, 675 (N.Y. Sup. Ct. 1978) (noting scholarly disagreement

over French legal meaning of “bodily injury”), Husser! v.

Swiss Air Transport Co., 388 F.Supp. 1238, 1250 (S.D. N.Y.

1975) (conflicting interpretations of the term “bodily injury”

were unconvincing and inconclusive).

If allowed to stand, the decision below will have a

substantial impact on all of international aviation. The

purpose of the Convention “is uniformity among its diverse

adherent Nations — the achievement, so far as possible, of a

uniform body of law as to the various subject matters which

are covered. The particular provisions limiting liability were

designed to assure that only a regulated burden be borne by

the air carriers.” Rosman, supra, 358 N.Y.S.2d at 106, 314

N.E.2d at 854. The decision below undermines the

Convention’s purpose by imposing an absolute and

potentially unlimited liability upon international air carriers

for what is essentially a purely subjective and

undemonstrable injury. It has been noted that “[mlental

disturbance is easily simulated, and courts which are

plagued with fraudulent personal injury claims may well be

unwilling to open the door to an even more dubious field.”

Prosser & Keeton, The Law of Torts, supra, at page 361.

Nonetheless, the decision below imposes upon air carriers

15

absolute liability for fright, shock or other mental

disturbances which are not marked by any definite physical

symptoms capable of clear medical proof. It imposes such

liability in a context which does not require a showing of

fault or degree of misconduct. And it imposes such liability

in absence of the traditional safeguards which separate the

spurious from the meritorious claims. Conceivably, every

hypersensitive individual with a fear of flying could make a

claim against an airline for the discomfort experienced on a

flight beset by turbulence. Historically, the law has been

reluctant to redress fright or shock:

The temporary emotion of fright, so far from

serious that it does no physical harm, is so

evanescent a thing, so easily counterfeited, and

usually so trivial, that the courts have been quite

unwilling to protect the plaintiff against mere

negligence, where the elements of extreme outrage

and moral blame which have had such weight in the

case of the intentional tort context are lacking.

Prosser & Keeton, The Law of Torts, supra, at page 361.

The Eleventh Circuit has created a cause of action

which opens wide the door to litigation, subjecting

international air carriers to the flood of fictitious or frivoious

claims.

IV.

THE COURT MAY DESIRE TO CONSIDER

AN ADDITIONAL QUESTION CONCERN-

ING WHETHER THE WARSAW CONVEN-

TION IS THE EXCLUSIVE PASSENGER

REMEDY FOR ACCIDENTAL INJURIES

OCCURRING IN INTERNATIONAL AIR

TRANSPORTATION.

If this Court grants certiorari to decide the Article 17

question, it may wish to address the related question, left

16

oo —e ear Se + ee ee

undecided in Air France v. Saks, 470 U.S. 392 (1985), of

whether the Warsaw Convention provides the exclusive

grounds for carrier liability to an airline passenger injured in

an in-flight accident.

In Benjamins v. British European Airways, 572 F.2d

913, 919, the Second District held that the Warsaw

Convention creates a cause of action and provides the

“universal source of a right of action” for passengers injured

in international air transportation. See, e.g.: Johnson v.

American Airlines, Inc., 834 F.2d 721, 723 (9th Cir. 1987)

(suggesting exclusivity in stating that the Warsaw

Convention “applies to all cases in which aircraft is hired to

transport someone or something on an international route.”’)

(Emphasis in original); Boehringer-Mannheim Diagnostics

v. Pan American World Airways, 737 F.2d 456, 459 (5th Cir.

1984) (Warsaw Convention preempts the field for damaged

cargo claims in international transportation).

Other courts have held that the Warsaw Convention is

exclusive where it applies but suggest that it narrowly

preempts only those state laws in conflict with it. Jn Re

Aircrash in Bali, Indonesia on April 22, 1974, 684 F.2d 1301,

1307 (9th Cir. 1982) (Congress did not intend for the

Convention to preempt the field but it preempts state law

which “stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of Congress.”).

There is, therefore, a direct conflict among the courts of

appeal over whether the Warsaw Convention preempts the

field and provides the exclusive source of air carrier liability

for damages sustained in international air transportation.

The question of the Warsaw Convention’s exclusivity is

intertwined with the question of whether Article 17

comprehends recovery for purely mental or emotional injury.

Courts which have read Article 17 broadly have often done

so out of a concern that damages not comprehended by the

Convention may give rise to state created causes of action

not subject to any of the Convention’s conditions or limits.

17

See, e.g., Karfunkel v. Compagnie Nationale Air France,

supra, 427 F.Supp. at 976-77; Husserl v. Swiss Air

Transport Company, Ltd., supra, 388 F.Supp. at 1246. An

expansive reading of the types of injury comprehended by

Article 17 has been deemed to advance the Convention's

purpose of limiting air carrier liability. Husserl, 388 F.Supp.

at 1246-47. Thus, the courts have been forced into the broad

interpretation of Article 17 out of a persistent concern that

the Warsaw Convention would otherwise be wholly

circumvented and undermined by resort to state law causes

of actions. This Court can resolve this dilemma by holding

that the Warsaw Convention constitutes the exclusive source

of air carrier liability for loss or injury suffered in

international transportation. The Court should address this

issue to provide needed guidance in future cases.

CONCLUSION

Certiorari should be granted.

Respectfully submitted,

JOHN MICHAEL MURRAY

AURORA A. ARES

THORNTON, DAVID, MURRAY,

RICHARD & DAVIS, P.A.

2950 S.W. 27th Avenue, Suite 100

On the Brief: Miami, FL 33133

LINDA SINGER STEIN (305) 446-2646

April 9, 1990 Attorneys for Petitioner

18

Appendix

INDEX TO APPENDICES

APPENDIX A:

Opinion of Court of Appeals for the Eleventh

Circuit dated May 5, 1989 and reported at 872

LE

APPENDIX B:

Memorandum Opinion of the United States

District Court for the Southern District of Florida

dated February 3, 1986 and reported at 629

F.Supp. 307 (S.D. Fla. 1986) ...................

APPENDIX C:

Opinion of the Supreme Court of Florida in

related case Eastern v. King dated February 15,

1990 and reported at ... So2d — ,

1S F.L.W. 61 (Fla. Feb. 15, 1990) ..............

APPENDIX D:

Order of Court of Appeals for the Eleventh Circuit

on Petition for Rehearing and Suggestion of

Rehearing In Banc dated January 11, 1990......

App. A-!

App. B-1

App. C-1

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 86-5381

D.C. Docket No. 83-1949

ROSE MARIE FLOYD and TERRY FLOYD, her husband,

CONNIE GALE and MICHAEL GALE, her husband,

MICHAEL GALE and CONNIE GALE, his wife,

GLORIA PATTERSON, EDMOND PATTERSON,

THOMAS J. NOLAN, ROBERT SCHARHAG,

EUGENE H. CHAMP, FREDERICK W.

HOEHLER, IV, SALLY ANN COLLINS, MICHAEL

R. DRAMIS, SANDY DIX and GARY DIX, her

husband, DANA DIX, by and through her parents

GARY DIX and SANDY DIX, as guardians and next

friends, ALEXANDER DIX, by and through his

parents GARY DIX and SANDY DIX, as guardians and

next friends, GERRI ASH SELF, SUSAN ROONEY

and WILLIAM ROONEY, her husband, JANET

JACOBS and BRUCE JACOBS, her husband,

ALEXANDER EMBRY, SALIM KHOURY and

DEBORAH KHOURY, his wife, BRUCE JACOBS and

JANET JACOBS, his wifes MYRIAM CARRASCO

(f{/k/a MYRIAM RILEY) TERRY FLOYD and ROSE

MARIE FLOYD, GARY DIX and SANDY DIX, his

wife, SALIM KHOURY and DEBORAH KHOURY, his

wife, GREGORY MANTZ, by and through his parents,

NETTA MANTZ and HAROLD D. MANTZ, as

guardians and next friends NETTA MANTZ,

HAROLD MANTZ, GREGORY D. MANTZ, by and

through his father HAROLD D. MANTZ,

Plaintiffs-Appellants,

versus

EASTERN AIRLINES, INC.,

Defendant- Appellee.

App. A-1

Appeal from the United States District Court

for the Southern District of Florida

(May 5, 1989)

Before JOHNSON and ANDERSON, Circuit Judges, and

ATKINS", Senior District Judge.

ANDERSON, Circuit Judge:

This case presents difficult questions of interpretation

of the Warsaw Convention. It also presents a difficult

question concerning a Florida state law cause of action for

intentional infliction of emotional injury; however, this court

is bound by the state court’s resolution of this issue. The

case also presents issues relating to preemption of the state

law cause of action. Because we hold that the district court

erred in its construction of the Warsaw Convention, we

reverse its judgment and remand with instructions. In

addition, we reverse the district court’s refusal to grant leave

to two plaintiffs to amend their complaints.

I. FACTS

Eastern Airlines flight 855 left Miami en route to

Nassau, Bahamas on the morning of May 5, 1983. During the

flight, one of the airplane’s three engines lost oil pressure.

The crew shut down the ailing engine and headed back to

Miami. Shortly thereafter, the second and third engines

failed. Without power, the plane began losing altitude, and

the crew told the passengers that they would have to ditch

the plane in the Atlantic Ocean. Fortunately, the crew

managed to restart the engine that had initially failed and to

land the plane safely at Miami International Airport.

The plaintiffs in the twenty-five consolidated cases

before us today were passengers on flight 855. Except for two

cases discussed below, they have brought suit claiming

*Honorable C. Clyde Atkins, Senior U.S. District Judge for the

Southern District of Florida, sitting by designation.

App. A-2

a eee

damages solely for mental distress arising out of this

incident. These claims are grounded on two theories.' The

first is a cause of action for intentional infliction of

emotional distress under Florida law. The second arises

under the Warsaw Convention.’ The United States District

Court for the Southern District of Florida granted judgment

on the pleadings in favor of Eastern, holding that the

plaintiffs failed to state a claim upon which relief could be

granted under either Florida or federal law. Jn re Eastern

Airlines, Inc., Engine Failure, Miami International Airport

on May 5, 1983, 629 F.Supp. 307 (S.D.Fla. 1986). In

considering plaintiffs’ appeal, then, we look only to the face

of the complaint and must accept its allegations as true.‘

We address in turn plaintiffs’ state law claim for

intentional infliction of emotinoal distress (Part II), the

cause of action under the Warsaw Convention for emotional

injury (Part III), preemption (Part IV), plaintiffs’ claim for

punitive damages pursuant to Article 25 of the Warsaw

Convention (Part V.A.), preemption of plaintiffs’ state law

'The plaintiffs also brought breach of contract and negligence claims

under Florida law, but they did not appeal the district court’s dismissal of

those claims.

*The parties agree, and the district court held, that Florida law

governs plaintiffs’ claim for intentional infliction of emotional distress. Jn

re Eastern Airlines, Inc., Engine Failure, Miami International Airport

on May 5, 1983, 629 F Supp. 307, 309 n.1 (S.D.Fla. 1986).

‘Convention for the Unification of Certain Rules Relating to

International Transportation by Air, concluded at Warsaw, Poland,

October 12, 1929, adhered to by the United States June 27, 1934, 49 Stat.

3000, 3014, reprinted in 49 U.S.C. note following § 1502. We shall refer to

this treaty by its more popular and less cumbersome name, the Warsaw

Convention.

‘The plaintiffs have represented to this court that their complaints

are identical in all respects material to this appeal. Since Eastern has not

challenged this representation, we accept it as true. We work from the

complaint in the Floyd case, and any ref*rences to “the complaint” are to

that one, except in Part VII, infra.

App. A-3

claim for punitive damages (Part V.B.), guidance on remand

with respect to willful misconduct under the Warsaw

Convention (Part VI), and denial of leave to amend the

complaints of two plaintiffs (Part VII).

II. INTENTIONAL INFLICTION OF

EMOTIONAL DISTRESS CLAIM

Plaintiffs alleged that Eastern’s maintenance personnel

responsible for Flight 855 had failed to install the required

oil seals or “O-rings” necessary to prevent oil leaks; that

Eastern’s records revealed that its aircraft had experienced a

dozen prior engine failures stemming from the absence of O-

rings; and that Eastern knowingly failed to institute

appropriate procedures to correct the problem. The

plaintiffs sought damages for intentional infliction of

emotional distress based upon these allegations under

Florida law.

In a case arising out of the same incident as the cases

before us today, the Florida Third District Court of Appeal

sitting en banc held that plaintiffs’ allegations stated a cause

of action under Florida law. King v. Eastern Airlines, Inc.,

536 So.2d 1023 (Fla. 3d D.C.A. 1987).' This court is bound by

that interpretation of Florida law in the absence of some

persuasive indication that the Florida Supreme Court would

hold otherwise. Bradbury v. Wainwright, 718 F.2d 1538,

1540 (11th Cir. 1983); Silverberg v. Paine, Webber, Jackson

& Curtis, Inc., 710 F.2d 678, 690 (11th Cir. 1983). We note

that on March 9, 1989, the Supreme Court of Florida

accepted jurisdiction in the King case.‘ For purposes of this

"The Florida court also held that plaintiffs’ claims did not state a

cause of action under federal law, the Warsaw Convention. 532 So.2d at

1074-76. The parties concede that this Court is not bound by that aspect

of the Florida court’s holding.

"The Court has set oral argument in King for June 8, 1989. King v.

Eastern Airlines, Inc., Order Accepting Jurisdiction and Setting Oral

Argument, Case No. 73,395 (Fla. Mar. 9, 1989).

App. A-4

ee ee orm, > ee

opinion only, we assume that the law of Florida is as

enunciated by the Third District Court of Appeals. However,

on remand the district court will be bound by the decision of

the Supreme Court of Florida on the issue of the state law

cause of action for intentional infliction of emotional

distress.

Ill. WARSAW CONVENTION CLAIM

In their amended complaints, plaintiffs assert a claim

for damages under the Warsaw Convention. The Convention

is an international treaty to which the United States is a

party. Air France v. Saks, 470 U.S. 392, ____., 105 S.Ct. 1338,

1341 (1985). Most of the major countries of the world adhere

to the Warsaw Convention, including the Bahamas, the

intended destination of Flight 855. See Lee S. Kreindler, 1

Aviation Accident Law § 11.01[3] at 11-7 (1988) (listing

countries which are parties to the Convention). The

Convention applies to “all international transportation of

persons, baggage, or goods performed by aircraft for hire.”

Warsaw Convention Art. 1.

The Warsaw Convention was the result of two

international conferences, he'd in Paris in 1925 and Warsaw

in 1929, and of the work done in the interim by the Comité

International Technique d’Experts Juridiques Aériens

(“CITEJA”). Block v. Compagnie Nationale Air France, 386

F.2d 323, 326-27 (5th Cir. 1967) (discussing background of

Warsaw Convention), cert. denied, 392 U.S. 905 (1968). At

that time, commercial air travel was in its infancy, but

‘“{c]Jommon rules to regulate international air carriage ha[d]

become a _ necessity.” Minutes, Second International

Conference on Private Aeronautical Law, October 4-12,

1929, Warsaw 13 (English translation by Robert C. Horner

and Didier Legrez 1975) (“Minutes”) (address of Mr.

Lutostanski, head of the Polish delegation).

The conference at Warsaw had two goals. First, to

establish uniformity as to documentation such as tickets and

App. A-5

waybills, and procedures for dealing with claims arising out

of international transportation. See Minutes at 85, 87. The

second, and more important at the time, goal of the

conference was to limit the potential liability of air carriers

in the event of accidents and lost or damaged cargo. See

Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S.

243, __., 104 S.Ct. 1776, 1784 (1984); Minutes at 37;

Andreas F. Lowenfeld and Allan I. Mendelsohn, The United

States and The Warsaw Convention, 80 Harv.L.Rev. 497,

498-99 (1967) (“Lowenfeld and Mendelsohn”). The

Convention established a presumption that air carriers are

liable for damage sustained by passengers as a result of the

carrier's negligent conduct, but strictly limited this liability

to 125,000 Poincaré francs, approximately 8,300 dollars.

Warsaw Convention Art. 17, 20, 22.

Proponents put forth several reasons in support of the

strict limitations on air carrier liability. First, they pointed

out that such limits on liability were not unknown in the law,

and drew an analogy to maritime law with its global

limitation of a shipowner’s liability which enables it to

obtain necessary capital. In addition, a limitation on liability

provided necessary protection of a financially weak industry

and ensured that catastrophical risks would not be borne by

the air carriers alone. Furthermore, the limit allowed for the

inability of carriers to insure against such great risks while

admitting that passengers could obtain’ insurance

themselves. Finally, the liability limitation sought to avoid

litigation by facilitating quick settlements and establishing a

uniform law with respect to the amount of recoverable

damages. See H. Drion, Limitation of Liabilities in

International Air Law 12-44 (1954). Whatever the validity of

these arguments today,’ the liability limitation was and

remains an integral feature of the Warsaw scheme.

"See Kreindler, 1 Aviation Accident Law §11.01[6] at 11-13;

Comment, Warsaw Convention Liability Limitations: Constitutional

(Footnote continued on next page)

App. A-6

Ee - ee ee eee

While the air carriers clearly were the chief beneficiaries

of the Warsaw system, passengers also received some

benefits. Article 23 of the Convention invalidated any

attempt by the carrier tending to relieve it of liability or to

fix a limit lower than that of the Convention. The

Convention also shifted the burden of proof in an accident so

that the carrier was presumed negligent unless it could show

that it had taken all necessary measures to avoid damages or

that it was impossible for it to take such measures. Warsaw

Convention Art. 20. In addition, Article 25 provided that the

carrier would not be able to invoke the liability limitation in

cases where a plaintiff is able to prove “willful misconduct.”

Respected commentators have noted that “[tjhe essential

bargain was a shift in the burden of proof in return for a

limit of liability (except in cases of willful misconduct) set at

8,300 dollars per person.” Lowenfeld and Mendelsohn, 80

Harv.L.Rev. at 500; Minutes at 47, 51.*

The United States did not participate in the drafting of

the Convention; it had only sent observers to Warsaw.

Minutes at 10. After serveral countries ratified the

Convention, however, the United States pronounced its

adherence to the Warsaw Convention in 1934. On June 15,

1934, the Senate approved the Convention by voice vote. 78

Cong.Rec. 11,582 (1934); see Lowenfeld and Mendelsohn, 80

Harv.L.Rev. at 502.

The Convention provoked sharp debate and criticism in

the United States and throughout the world almost

immediately after it went into effect, and many proposals to

revise it were put forth. See Lowenfeld and Mendelsohn, 80

(Footnote continued from previous page)

Issues, 6 Nw.J.Int! L. & Bus. 896 (1984); Comment, The Crowth of

American Judicial Hostility Towards the Liability Limitations of the

Warsaw Convention, 48 J. Air L. & Com. 805 (1983).

*In 1966, air carriers serving the United States agreed to waive their

due care defenses and increase the amount of their liability to $75,000 in

the Montreal Agreement, which we discuss infra.

App. A-7

Harv.L. Rev at 502; Stuart M. Speiser and Charles F. Krause,

1 Aviation Tort Law § 11.17 at 669-70 (1978 and 1988 Supp.)

(“Speiser and Krause’). The parties to Warsaw met at the

Hague in 1955 to consider revising the Convention. The

principal effect of the Hague Protocol was to double the

liability limit to approximately $16,600. Hague Protocol

Art. XI, reprinted in Andreas F. Lowenfeld, Aviation Law

Documents Supp. 958-59 (2d ed. 1981). Opponents

expressed continuing dissatisfaction with the limit of

liability even under Hague, and the United States has never

adhered to the Hague Protocol. See Reed v. Wiser, 555 F.2d

1079, 1083-88 (2d Cir ), cert. denied, 434 U.S. 922 (1977).

This dissatisfaction with the Warsaw regime led to the

United States’ formal denunciation of the Convention

pursuant to Article 39 in November 1965. See 31 Fed.Reg.

7302 (1966). The notice of denunciation led to intense

negotiations culminating in the Montreal Agreement® of

1966." At Montreal the airlines entered into an “interim

solution” (that has lasted over twenty years) whereby

airlines agreed to raise the limit of liability to $75,000 and

waive the due care defenses of Article 20 for flights

originating, terminating, or having a stopping point in the

United States. Lowenfeld and Mendelsohn, 80 Harv.L.Rev.

at 602. The Montreal Agreement is not a treaty, but rather

an agreement among all major international air carriers that

imposes a quasi-legal and largely experimental system of

liability essentially contractual in nature. Krystal v. British

Overseas Airways Corp., 403 F.Supp. 1322 (C.D.Cal. 1975).

CAB Order No. E-28680, May 13, 1966, 31 Fed. Reg. 7302 (1966).

‘*For a detailed discussion of the events leading up to Montrea! and

the Montreal Agreement itself, see Lowenfeld and Mendelsohn, 80

Harv.L.Rev. 497. The authors represented the United States State

Department at Montreal.

App. A-8

rt

Other international conferences have taken place since

Montreal in an attempt to revise the Warsaw regime, see

Speiser and Krause § 11.20 at 680-83, Lowenfeld, Aviation

Law Documents Supp. at 975-1022, but today the United

States remains subject to the terms of the original Warsaw

Convention, as modified by the Montreal Agreement. See

Kreindler, 1 Aviation Accident Law § 11.01[7] at 11-16. It is

ironic that the delegates at Warsaw in no way considered

their work definitive. Mr. Amedeo Giannini, Head of the

Italian Delegation at Warsaw, stated that what the delegates

were doing was “nothing but a first try at codification, a first

effort to codify aeronautical law.” Minutes at 32.

The Warsaw Convention is a self-executing treaty which

requires no implementing legislation by the signatories.

Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S.

243, 252, 104 S.Ct. 1776, 1783 (1984). Therefore, we must

look to the terms of the Warsaw Convention itself to

determine whether Eastern can be held liable to the

plaintiffs in this case for their alleged emotional injuries.

A. The Cause of Action Under Warsaw

At the outset, we accept those cases holding that the

Warsaw Convention itself creates a cause of action. In the

years immediately following the United States’ adherence to

the Convention, most courts and commentators assumed

that Article 17 created a cause of action. See Salamon v.

Koninklijke Luchtvaart Maatschappij, N.V., 107 N.Y.S.2d

768, 773 (Sup.Ct. 1951), aff'd mem. 281 App.Div. 965, 120

N.Y.S.2d 917 (1st Dept. 1953) (“{i}f the Convention did not

create a cause of action in Art. 17, it is difficult to

understand just what Art. 17 did do”); James M. Grippando,

Warsaw Convention—Federal Jurisdiction and Air Carrier

Liability for Mental Injury: A Matter of Limits, 19

Geo.Wash.J.Int’'l L. & Econ. 59, 64-65 (1985); Lowenfeld and

Mendelsohn, 80 Harv.L.Rev. at 517.

App. A-9

Two seminal Second Circuit decisions in the 1950's,

however, held that the Warsaw Convention did not create a

cause of action. Komlos v. Compagnie Nationale Air France,

209 F.2d 436 (2d Cir. 1953), cert. denied, 348 U.S. 820 (1954);

Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d

Cir.), cert. denied, 355 U.S. 907 (1957). Courts followed these

decisions for two decades, and most commentators assumed

the question to be closed, although not without criticizing

the decisions. See Lowenfeld and Mendelsohn, 80

Harv.L.Rev. at 516-19; G. Nathan Calkins, Jr., The Cause of

Action Under the Warsaw Convention, 26 J.Air L. & Com.

217, 323 (1959).

Upon reexamination of these decisions, a careful

analysis of the minutes of the Convention, and an analysis of

the goals of the Warsaw regime, however, the Second Circuit

reversed itself in Benjamins v. British European Airways,

572 F.2d 913 (2d Cir. 1978), cert. denied, 439 U.S. 1114

(1979). Judge Lumbard, author of the of the Noel decision,

wrote the opinion for the court holding that the Warsaw

Convention itself did create a cause of action for wrongful

death under Article 17 and for lost baggage under Article 18.

Other courts of appeals soon followed. See Boehringer-

Mannheim Diagnostics, Inc. v. Pan American Worid

Airways, Inc., 737 F.2d 456 (5th Cir. 1984), cert. denied, 469

U.S. 1186 (1985); Abramson v. Japan Airlines Co., 739 F.2d

130 (3d Cir. 1984), cert. denied, 470 U.S. 1059 (1985); In re

Mexico City Air Crash of October 31, 1979, 708 F.2d 400 (9th

Cir. 1983). See also Note, The Warsaw Convention— Does it

Create a Cause of Action’, 47 Fordham L.Rev. 366 (1978).

While the Supreme Court has not expressly decided the

issue, it implicitly has adopted the view that the Warsaw

Convention itself creates a cause of action. In one of only

three cases'' construing the Warsaw Convention, the Court

The other Supreme Court cases on the Warsaw Convention

addressed the Convention's gold-based liability limits for lost cargo,

(Footnote continued on next page)

App. A-10

held in Air France v. Saks, 470 U.S. 392, 105 S.Ct. 1338

(1985), that an airline passenger who became permanently

deaf allegedly because of negligent maintenance and

operation of the aircraft’s pressurization system was not a

victim of an “accident” for which the airline could be held

liable under Article 17 of the Warsaw Convention. While

Saks’ original complaint stated a cause of action for

negligence under state law, the Court ruled only on her

allegations under Warsaw. 470 U.S. at __., 105 S.Ct. at

1347.

In St. Paul Insurance Co. v. Venezuelan International

Airways, Inc., 807 F.2d 1543, 1546 (11th Cir. 1987), a panel

of this court held that Articles 18, 21, and 28 of the

Convention created a cause of action against international

air carriers for lost cargo. We extend this holding to Article

17 of the Convention as well, and hold that Article 17 creates

a cause of action for personal injury.

B. Article 17

Having concluded that the Warsaw Convention creates

a cause of action, we now turn to the difficult question of

interpreting the provisions of the Convention. Article 17 of

the Convention sets forth the liability of international air

carriers for injuries to passengers. Plaintiffs assert that

Article 17 of the Convention provides a remedy for the

injuries that they allegedly suffered—i.e., psychic injuries

and emotional distress unaccompanied by physical injury.

In assessing the validity of their claim, we are required

to determine the French legal meaning of the Convention's

(Footnote continued from previous page)

Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, __.,

104 S.Ct. 1776 (1984), and the question whether an airline may assert the

$75,000 Convention limitation on liability if the limitation is printed on

passenger tickets in smaller type size than that specified in the

Convention. Chan v. Korean Air Lines, Lid., 490 U.S. —_., 57 US.L.W.

4432 (April 18, 1989).

App. A-11

terms.’ Air France v. Saks, 470 U.S. 392, __., 105 S.Ct.

1338, 1342 (1985); Block v. Compagnie Nationale Air

France, 386 F.2d 323, 330 (5th Cir. 1967), cert. denied, 392

U.S. 905 (1968)." The French text of the Warsaw Convention

is the only official text and the one officially adopted and

ratified by the Senate. See Minutes at 15 (resolution

designating French as official language of the conference).

The unofficial United States translation, which appears at 49

Stat. 3014, was made by the State Department. See

alagonia v. Trans World Airlines, Inc., 110 Misc.2d 478,

442 N.Y.S.2d 670, 672 (Sup.Ct. 1978). The Supreme Court

stated that the French legal meaning controls

treaty a meaning consistent with the shared

drafted in French by continental jurists.

Saks, 470 U.S. at __., 105 S.Ct. at 1342 (citations omitted).

See also Dana Stanculescu, Recovery for Mental Harm

Under Article 17 of the Warsaw Convention: An

Interpretation of Lésion Corporelle, 8 Hastings Int'l and

Comp.L.Rev. 339, 347-350 (1985).

The original French text of Article 17 reads as follows:

‘*The French legal meaning of the Warsaw Convention is properly

before us today. The district court discussed the issue, 629 F Supp. at 312-

14, and al! parties clearly were on notice that this question of French law

was relevant to the case. The briefs on appeal also addressed the issue See

Fed.R.Civ.P. 44.1; Charles Alan Wright and Arthur R. Miller, 9 Federa!

Practice & Procedure $2443 at 403 (1971 and 1988 Supp.).

"This case was decided prior to the close of business on September

30, 1981, and is binding precedent under Bonner v. City of Prichard, 661

F.2d 1206, 1209 (11th Cir. 1981).

App. A-12

Le transporteur est responsable du dommage

survenu en cas de mort, de blessure, ou de toute

autre lésion corporelle subie par un voyageur

lorsque l'accident qui a causé le dommage s est

produit d bord de l’aérnoef au cours de toutes

operations d’embarquement et de debarquement.

The unofficial United States translation of Article 17 is as

follows:

The carrier shall be liable for damage sustained in

the event of the death or wounding of a passenger

or any other bodily injury suffered by a passenger,

if the accident which caused the damage so

sustained took place on board the aircraft or in the

course of any of the operations of embarking or

disembarking.

49 Stat. 3014, reprinted at note following 49 U.S.C. § 1502.

The incident here clearly occurred on board the aircraft.

Cf. Day v. Trans World Airlines, Inc., 528 F.2d 31 (2d Cir.

1975), cert. denied, 429 U.S. 890 (1976); Note, Warsaw

Convention—Air Carrier Liability for Passenger Injuries

Sustained Within a Terminal, 45 Fordham L.Rev. 369

(1976). The district court held that the loss of power and

preparation for ditching on Flight 855 was an “accident” for

Article 17 purposes, and Eastern has not contested that

ruling. 629 F.Supp. at 312; see Saks, 470 U.S. at __, 105

S.Ct. at 1345 (“accident” defined as an “unexpected or

unusual happening or event that is external to the

passenger’).

The crucial issue, then, is whether the phrase /ésion

corporelle encompasses purely emotional distress. The

question whether Article 17 encompasses recovery for purely

mental injuries has confounded courts and commentators for

many years. An early commentary on the Warsaw

Convention pointed out that Article 17 “is full of pitfalls and

obscurities,” and noted that “it is not clear if mental injury

App. A-13

is covered by the Article.” K.M. Beaumont, Need for

Revision and Amplification of the Warsaw Convention, 16

J.Air L. & Com. 395, 401-02 (1949).

Based upon our interpretation of the French legal

meaning of the text, the concurrent and subsequent

legislative history, and the case law, we conclude that the

Convention provides recovery for purely emotional injuries

unaccompanied by physical injury.

1. French legal meaning of the text

Because the Warsaw Convention was drafted in French

and reflects a civil law liability regime, we must look to the

French legal meaning of lésion corporelle to determine

whether it contemplates recovery for mental anguish

unaccompanied by physical trauma. After careful review of

the cases and commentary on the meaning of lésion

corporelle, we are persuaded that the term covers any

“personal” injury — i.e., any injury suffered by the plaintiff

as a person. See Palagonia v. Trans World Airlines, Inc.,

110 Mise.2d 478, 442 N.Y.S.2d 670, 673 (Sup.Ct. 1978), Rene

H. Mankiewicz, The Liability Regime of the International

Air Carrier 145-46 (1981) (“Mankiewicz”)." This includes

emotional injury unaccompanied by any physical trauma.

While the use of the word corporelle would, if read

literally, appear to imply that recovery for dommage

mentale is unavailable, we are persuaded that this literal

reading is unwarranted. Cf. Burnett v. Trans World

Airlines, Inc., 368 F Supp. 1152, 1156 (D.N.M. 1973)

(applying literal French translation of lésion corporelle to

exclude recovery for mental anguish). The literal translation

of lésion corporelle does not fully capture its French legal

meaning. Palagonia, 442 N.Y.S.2d at 673. See Mankiewicz at

141 (1981) (“While ‘bodily injury’ is undoubtedly «a

grammatically correct translation of lésion corporelle, it may

‘Dr Mankiewicz is an internationally known expert on the Warsew

Convention and aviation law. See Paiagomea, 442 N.Y S.2d at 672

App. A-14

rightly be argued that the meaning of that expression in

French law and its equivalents in other civil laws are more

correctly rendered by the expression ‘personal injury’.”). Our

study of the issue has convinced us that there is nothing in

French law prohibiting compensation for any particular kind

of damage, including emotional trauma, provided the

damage is certain and direct. See Barry Nicholas, French

Law of Contract 219-26 (1982); Marcel Plainol and George

Ripert, 2 Treatise on the Civil Law No. 249 at 150-51 (11th

ed. 1959) (Louisiana State Law Institute translation).

Nor can it be said that the express mention of the word

corporelle by implication excludes what is mentale. One

commentator points out that dommage corporelle in French

law includes physical, mental, and moral damage, as well as

any pecuniary loss resulting from personal injury. Georgette

Miller, Liability in International Air Transport 122-23

(1977) (“Miller’’).

There is no counterpart in French law to the common

law doctrine which distinguishes between physical injury

(compensable), and purely mental or emotional injury

unaccompanied by physical injury (not compensable). To the

contrary, French law permits recovery for any damage

whether material or moral. Palagonia, 442 N.Y.S.2d at 673;

Mankiewicz at 145, 157; Miller at 112-15. This includes

damages such as medical expenses, funeral expenses, lost

earnings, and pain and suffering. Mankiewicz at 157. It also

includes recovery for mental suffering unaccompanied by

physical injury. Mankiewicz at 145. See also Yvonne Blanc-

Dannery, La Convention de Varsovie et les régles du

transport aérien international 62 (Paris 1933), quoted in

Mankiewicz at 146 (“{t]he use of the expression lésion after

the words ‘death’ and ‘wounding’ encompasses and

contemplates cases of traumatism and nervous troubles, the

consequences of which do not immediately become manifest

App. A-15

in the organism but which can be related to the accident.”’)."*

See also Palagonia, 442 N.Y.S.2d at 673 (relying on Blanc-

Dannery dissertation)."*

The wording of Article 17 strongly suggests that the

drafters did not intend to exclude any particular category of

"The Blanc-Dannery thesis was written under the supervision of

Dean Georges Ripert, a leading French delegate at Warsaw. Minutes at 6

(listing French delegation). The Second Circuit has referred to Ripert as

the “dean of French writers on civil law.” Day v. Trans World Airlines,

Inc., 528 F.2d 31 (2d Cir. 1975), cert. denied, 429 U.S. 890 (1976). See also

Block v. Compagnie Nationale Air France, 386 F.2d 323, 328 (5th Cir.

1967), cert. denied, 392 U.S. 905 (1968).

‘While French law does not draw the sharp distinction that the

common law does between emotional injuries and injuries resulting from

physical trauma, it does recognize two types of legally cognizable injuries:

physical injuries (dommage materiel) and non-physical injuries

(dommage moral). Miller at 125. Dommage materiel consists of pecuniary

loss resulting from injury, such as compensation for expenses or financial

loss resulting from injury or death, medical and funeral expenses, and loss

of earning power or income. Dommage moral refers to intangible losses

such as pain and suffering, invasion of privacy, or disfiguration.

Mankiewicz at 157. See also Simeon Moquet Borde & Associes, | Doing

Business in France § 8.02[2][b] at 8-6 (1988) (physical injuries are those

which are caused to the person or property of the injured person; non-

physical injuries include the pain and suffering of the injured party

himself, the injury caused to the honor or emotions of the injured party

(e.g. slander or the mental suffering resulting from the death of a spouse)

or the loss of consortium). An accident victim generally can claim recovery

for both dommage materiel and dommage moral under French law, as

long as the victim can prove that the accident was the direct cause of his

or her injuries. Mankiewicz at 157; Marcel Plainol and George Ripert, 2

Treatise on the Civil Law No. 867-868A at 470-73 (lith ed. 1959)

(Louisiana State Law Institute translation). Bodily injuries, as well as

mental injuries, can be compensated as dommage moral without any other

distinction as to the origin of the injury. Miller at 126. As we have

discussed, the wording of Article 17 strongly suggests that the drafters did

not intend to exclude any particular category, common law or civi! law, of

damages. If they had, it seems likely that they would have referred to the

two basic types of damages in French law, dommage materiel and

dommage moral, rather than using the term lesion corporelle, which does

not readily evoke a sharp distinction of French law. Miller at 125.

App. A-16

damages. If lésion corporelle was intended to refer only to

injury caused by physical impact, it is likely that the civil

law experts who drafted the Warsaw Convention in 1929

would not have singled out and specifically referred to a

particular case of physical impact such as blessure

(““wounding”’)."" See Mankiewicz at 146.

The terms of the Convention must be construed broadly

in order to advance its goals. See Stratis v. Eastern Air

Lines, Inc., 682 F.2d 406, 412 (2d Cir. 1982); Day v. Trans

World Airlines, Inc., 528 F.2d 31, 35 (2d Cir. 1975) (“a

relatively broad construction of Article 17 is in harmony

with modern theories’), cert. denied, 429 U.S. 890 (1976),

Preston v. Hunting Air Transport, Ltd., 1 Q.B. 454, 1 All

Eng.Rep. 443, 1 Lloyd’s Rep. 45 (1956) (Article 17 read to

encompass not merely financial loss, but also loss suffered by

children after their mother killed in air crash). One clear goal

of the Convention is to maintain uniformity. Block v.

Compagnie Nationale Air France, 386 F.2d 323, 330 (5th

Cir. 1967), cert. denied, 392 U.S. 905 (1968). It would clearly

contravene this goal of uniformity for courts of the United

States to import into Warsaw Convention jurisprudence the

common law doctrine espoused by Eastern when that

doctrine has no foundation in French law.

2. Concurrent and subsequent legislative history of the

Warsaw Convention and conduct of the parties

While analysis of any treaty or international agreement

must begin with the text of the document and the context in

which the written words are used, see Maximov v. United

States, 373 U.S. 49, 53-54, 83 S.Ct. 1054, 1057-58 (1963), it is

proper to refer also to records of its drafting and negotiation

when interpreting a treaty when the text is subject to

"But see Burnett v. Trans World Airlines, Inc., 368 F.Supp. 1152,

1156 (D.N.M. 1973) (court rejected the argument that the term blessure

itself as used in Article 17 encompassed emotional injury). See Husserl v.

Swiss Air Transport Co., 351 F.Supp. 702, 708 (S.D.N.Y. 1972)

(“Husserl I"), aff'd 485 F.2d 1240 (2d Cir. 1973).

App. A-17

conflicting interpretations. Saks, 470 U.S. at __., 105 S.Ct.

at 1343. “[T]reaties are construed more liberally than private

agreements, and to ascertain their meaning we may look

beyond the written words to the history of the treaty, the

negotiations, and the practical construction adopted by the

parties.” Choctaw Nation of Indians v. United States, 318

U.S. 423, 431-32, 63 S.Ct. 672, 677-78 (1943). See Cook v.

United States, 288 U.S. 102, 53 S.Ct. 305, 308 (1933). As

Judge Wisdom stated in Block v. Compagnie Nationale Air

France, 386 F.2d 323, 330 (5th Cir. 1967), cert. denied, 392

U.S. 905 (1968), “the determination in an American court of

the meaning of an international convention drawn by

continental jurists is hardly possible without considering the

conception, parturition, and growth of the convention.”

Unfortunately, the history of the drafting of the Warsaw

Convention with respect to claims for mental injury is not

helpful. See Husserl v. Swiss Air Transport Co., 388 F.Supp.

1238, 1249 (S.D.N.Y. 1975) (“Husserl II”); Burnett v. Trans

World Airlines, Inc., 368 F.Supp. 1152, 1156-57 (D.N.M.

1973); Rosman v. Trans World Airlines, Inc., 34 N.Y.2d 385,

358 N.Y.S.2d 97, 105 (1974); Grippando, 19 Geo.Wash..J Int’!

L. & Econ. at 84-85. The drafters of the Convention in 1929

did not discuss whether Article 17 encompassed recovery for

mental injuries. See generally Minutes. The Senate did not

address the issue when it adhered to the Convention in 1934.

See 78 Cong.Rec. 11,577-82 (1934).

Subsequent action by the contracting countries to the

Warsaw Convention, however, supports the conclusion that

Article 17 encompasses recovery for mental anguish. When

interpreting a treaty, reference to the subsequent

interpretations by its signatories is appropriate to help

determine the meaning of an ambiguous provision. Air

France v. Saks, 470 U.S. at __., 105 S.Ct. at 1344. The

conduct of the parties of a treaty is relevant in ascertgining

the proper construction to accord the treaty’s provisions. /d.;

Pigeon River Improvement Slide & Boom Co. v. Charles W.

App. A-18

ee *

Cox, Ltd., 291 U.S. 138, 158-63, 54 S.Ct. 361, 366-67 (1934),

Day v. Trans World Airlines, Inc., 528 F.2d 31, 35-36 (2d

Cir. 1975), cert. denied, 429 U.S. 890 (1976).

Actions by the contracting states suggest that the

translation of lésion corporelle as “bodily injury” may have

placed too narrow a meaning on the French term. For

example, one commentator has pointed out that the official

German translation of Article 17 rendered the term /ésion

corporelle as “any infringement on the health .. . .” This

translation may more correctly reflect the understanding of

the expression lésion corporelle by the delegates at Warsaw.

Mankiewicz at 146.

The signatory airlines at Montreal in 1966 did not

discuss whether Article 17 provided recovery for mental

injury. Andreas F. Lowenfeld, Hijacking, Warsaw, and the

Problem of Psychic Trauma, 1 Int'l LJ. of Syracuse 345,

347-48 (1973). The focus concerned raising the limit of

liability to $75,000 and the carriers’ agreement to waive their

due care defense. However, the Montreal Agreement used

language which is relevant. In paragraph 1 of the Agreement,

the airlines agreed to include certain language in their

conditions of carriage — “{tJhe limit of liability for each

passenger for death, wounding, or other bodily injury shall

be the sum of $75,000.” In paragraph 2, the airlines agreed to

include certain language on each ticket as a notice to

passengers — “the liability of ...{[name . of

carrier] . . . for death or personal injury to passengers is

limited in most cases to proven damages not to exceed

$75,000 per passenger.” The Civil Aeronautics Board Order

which approved the terms of the Montreal Agreement also

uses the term “personal injury” interchangeably with the

term “bodily injury” when referring to compensable injuries

under the Warsaw regime.” 31 Fed.Reg. 7302 (1966). The

“The CAB order uses the phrase “death, wounding, or other bodily

injury” three times. The phrase “personal injury” is repeated four times.

31 Fed. Reg. 7302 (1966).

App. A-19

actual notice issued by the airlines to passengers uses the

term “personal injury.” See Krystal v. British Overseas

Airways Corp., 403 F.Supp. 1322, 1323 (C.D.Cal. 1975). The

court in Krystal found this to be dispositive on the question

whether Article 17 encompassed claims for purely psychic

injury. On the other hand, a participant at the Montreal

conference has asserted that “no legal significance should be

attached to this change in wording, which was occasioned

solely by the need to draft an intelligible notice in readable

type in the space provided by a ticket booklet.” Lowenfeld, 1

Int'l L.J. of Syracuse at 347 n.7.

While we do not find the change in wording on the

ticket form or the interchangeable uses of “bodily injury”

and “personal injury” to be dispositive, neither do we

completely discount them. It seems clear to us that there is

significance in the fact that the Montreal Agreement itself

and the Civil Aeronautics Board Order use the two terms

interchangeably. It is also significant that the only document

which is actually delivered to passengers informs them that

the airline's liability is limited in cases of death or “personal

injury,” not merely “bodily injury.” This is evidence of “the

conduct of the parties to the Convention and the subsequent

interpretations of the signatories” which, according to the

Supreme Court in Saks, 470 U.S. at ___., 105 S.Ct. at 1344,

helps clarify the meaning of the terms. See also Day v.

Trans World Airlines, Inc., 528 F.2d 31 (2d Cir. 1975)

(construing Warsaw Convention in light of Montreal

Agreement), cert. denied, 429 U.S. 890 (1976); Board of

County Commissioners of Dade County, Florida uv.

Aerolineas Peruanasa, S.A., 307 F.2d 802, 806-07 (5th Cir.

1962) (must consider intent of the parties in construing

treaty such as the Warsaw Convention), cert. denied, 371

U.S. 961 (1963); St. Paul Insurance Co. v. Venezuelan

International Airways, Inc., 807 F.2d 1543, .546 (11th Cir.

1987). Thus, we consider this evidence as another factor in

favor of allowing recovery for mental injuries.

App. A-20

In addition, the authentic English text of Article 3(1\c)

of the Convention, as amended at The Hague, used the

expression “personal injury,” while the authentic French

text of the amended article retained the expression “lésion

corporelle.” Hague Protocol Art. III, reprinted in Lowenfeld,

Aviation Law Documents Supp. at 956. See Mankiewicz at

141, 178.

Another important piece of subsequent “legislative

history” is the Guatemala City Protocol. Air France v. Saks,

470 U.S. at ___., 105 S.Ct. ut 1344-45 (using Guatemala City

Protocol to interpret meaning of “accident” in Article 17),

Day v. Trans World Airlines, Inc., 528 F.2d 31 (2d Cir.

1975), cert. denied, 429 U.S. 890 (1976). The Protocol was

drafted in three authentic texts, English, French, and

Spanish, although in cases of conflict the French text is to be

controlling. Guatemala City Protocol Art. XXVI, reprinted

in Lowenfeld, Aviation Law Documents Supp. at 984. The

English text of the Protocol has substituted “personal

injury” for “wounding or other bodily injury” in the

translation of Article 17. The French text has retained the

expression lésion corporelle. The fact that an official English

translation of Article 17 made by the drafters at the Hague

differs from the unofficial American translation made by the

State Department casts doubt on the accuracy of the

unofficial American translation. See Miller at 123.

The United States Senate has not ratified the

Guatemala City Protocol,” so it is important not to

"The Guatemala City Protocol was drafted in such a way as to

prohibit its ratification without the United States’ assent. in order to

avoid a repetition of the Hague Protocol situation. See Mankiewicz at 9-

10. The fact that the Senate has not ratified these modifications of the

Warsaw system is attributable to a reluctance to accept any damage

limitations at all, not from a desire to limit recoverable damages to purely

physical injury. See 129 Cong.Rec. $2237, $2270-79 (Daily ed. March 8,

1983); In re Korean Air Lines Disaster of September 1, 1983, 664 F Supp.

1463, 1469-70 (D.D.C. 1985), aff'd, 829 F.2d 1171 (D.C. Cir. 1987), aff'd

(Footnote continued on next page)

App. A-21

overestimate its importance. Grippando, 19 Geo.Wash.J Int'l

L. & Econ. at 85 n. 158; Speiser and Krause § 11.20 at 680-

83. Nor has the Senate ratified the Hague Protocol or

Montreal Protocols 3 and 4,” which also would have adopted

the change in wording of the English translation of Article

17 from “wounding ... or any other bodily injury” to

“personal injury.” While these Protocols “do not govern the

disposition of this case” because of the lack of Senate

ratification, nevertheless they are evidence of “the conduct

of the parties and the subsequent interpretations of the

signatories.” Saks, 470 U.S. at ____, 105 S.Ct. at 1344. This

evidence provides additional support for the conclusion that

the French legal meaning of de mort, de blessure, on de

toute autre lésion corporelle is “death or personal injury”

rather than “bodily injury.”

3. Cases interpreting Article 17

Prior judicial construction of Article 17, while helpful,

often has been flawed. In the 1970's an explosion of terrorist

activities led to litigation over the type of injuries

compensable under Article 17. Hijackers often did not

(Footnote continued from previous page)

sub nom. Chan uv. Korean Air Lines, Lid, 490 US. —._, 57 US.L.W.

4432 (April 18, 1989); Lee S. Kreindler, A Plairtiff’s View of Montreal, 33

J Air L. & Com. 528, 528-29 (1967); Grippando, 19 Geo. Wash.J. Int'l L. &

Econ. at 85-86 n.158. See also Reed v. Wiser, 555 F.2d 1079, 1087 (2d Cir.)

(discussing Hague Protocol, court stated that “the only reason for the

United States’ refusal to ratify it was its dissatisfaction with the low leve!

of the carriers’ liability limitations, not the other provisions of the

Protocol.”), cert. denied, 434 U.S. 922 (1977).

Protocol

to align the air carrier's liability for the carriage of goods with that

established for the carriage of passengers and registered baggage by the

Guatemala City Protocol. See Kreindler, Auation Law Documents Supp

at 985-1001.

App. A-22

physically harm passengers, but the passengers of hijacked

aircraft understandably experienced extreme terror and

psychological trauma. Courts were thus presented with the

difficult question whether the Warsaw Convention

contemplated recovery for psychological injuries alone. See

Kreindler, 1 Aviation Accident Law § 11.03{2][b] at 11-42.

Several cases have held that Article 17 of the

Convention does not allow recovery for purely emotional or

psychological injuries unaccompanied by physical trauma.

Probably the leading proponent of that view is Rosman v.

Trans World Airlines, Inc., 34 N.Y.2d 385, 358 N.Y.S.2d 97

(1974), in which the New York Court of Appeals held that

mental injury was not compensable under Warsaw in the

absence of physical trauma. The plaintiffs in Rosman were

passengers aboard a TWA flight which was hijacked while en

route from Tel Aviv, Israel, to New York and forced to land

in the desert near Amman, Jordan. The passengers were

held captive for six days by armed Arab guerillas, but were

ultimately released by their captors and returned to New

York. The plaintiffs claimed that they suffered extreme

psychic trauma as well as physical harm due to the harsh

desert conditions. The court held that their claims for

recovery based solely on psychic injury were not

compensable under Article 17. 358 N.Y.S.2d at 110. The

court reasoned that the ordinary meaning of “bodily injury,”

as opposed to mental injury, connoted “palpable,

conspicuous physical injury.” 358 N.Y.S.2d at 107. “Only by

abandoning the ordinary and natural meaning of the

language of article 17,” the court argued, “could we arrive at

a reading of the terms ‘wounding’ or ‘bodily injury’ which

might comprehend purely mental suffering without physical

manifestations.” 358 N.Y.S.2d at 107.”

Two cases have addressed actions for mental anguish not involving «

hijacking. In Kalish ». Trans World Airlines, Inc, 89 Misc.2d 153, 390

N.Y.S.2d 1007 (1977), the Civil Court of the City of New York, Queens

County, followed Rosman and held that a plaintiff who was trampled by

(Footnote continued on next page)

App. A-23

The Rosman analysis was flawed, however, because it

failed to consider the French legal meaning of the language

in Article 17. The court noted that there was “absolutely no

dispute over the proper translation of the liability provisions

of the Convention,” 358 N.Y.S.2d at 103, and that French

law therefore was irrelevant in interpreting the Convention

once a proper translation was agreed upon. 358 N.Y.S.2d at

105. In light of the Supreme Court’s holding in Saks that the

French legal meaning must govern our interpretation of

Warsaw, and in light of the considerable negative

commentary of Rosman’'s approach, we must reject the

Rosman analysis. See Saks, 470 U.S. at __, 105 S.Ct. at

1342; Mankiewicz at 141-45; Miller at 117-22; J. Kathryn

Lindauer, Recovery for Mental Anguish Under the Warsaw

Convention, 41 J.Air. L. & Com. 333, 336-38, 340 (1975).

Another case which held that psychic injury

unaccompanied by physical trauma is not compensable

under the Warsaw Convention is Burnett v. Trans World

(Footnote continued from previous page)

other passengers who stepped on and jostied her after panic ensued

among passengers trapped inside an airliner with an engine on fire was

entitled to recover for mental and emotional trauma resulting from her

experience.

Also, the Kentucky Court of Appeals held that a passenger cannot

recover damages for mental anguish under the Convention arising out of

losing « suitcase and its contents. Trans World Airlines, Inc. vw.

Christophel, 500 8.W.2d 409 (Ky.App. 1973). Christophel did noi involve

an “accident” within the meaning of Article 17 and hence has no

It is important to note that today we hold only that Article 17

authorizes recovery for mental anguish unaccompanied by physical

trauma only when there has been an “accident” sufficient to trigger the

application of Article 17. We express no opinion on claims for mental

distress not falling within the confines of Article 17. See Grippando, 19

Geo. Wash.J.Int'l L. & Econ. at 60 n. 5; J. Kathryn Lindauer, Recovery for

Mental Anguish Under the Warsaw Convention, 41 J Air. L. & Com. 333,

333 n.2 (1975) (noting the possibility of actions for mental distr. « not

based on an “accident”™).

App. A-24

Airlines, Inc., 368 F.Supp. 1152 (D.N.M. 1973). The court in

Burnett applied the French language meaning of “bodily

injury,” and determined that the definition of lésion

corporelle was “l’atteinte a l'integrite physique” (“an

infringement of physical integrity”). This definition, the

court stated, “gives not the slightest indication that mental

injuries are to be included within its domain.” 368 F.Supp.

at 1156. The court also rejected the plaintiffs’ contention

that blessure encompasses mental anguish. The court

reasoned that

The critical words of Article 17, “mort, de blessure,

and ou de toute autre lesion corporelle” must be

examined together in order to ascertain their

contextual meaning. Although the French-English

Dictionary of Legal Terms by Jules Jeraute defines

“blessure” to include not only a wound but also

hurt or injury, when the term is modified by the

subsequent phrase of the provision, it seems

apparent that the drafters utilized the word in

solely a physical sense.

368 F.Supp. at 1156. The court in Husserl v. Swiss Air

Transport Co., 351 F.Supp. 702, 708 (S.D.N.Y. 1972)

(“Husserl I’), aff'd per curiam 485 F.2d 1240 (2d Cir. 1973),

based on similar reasoning, also stated in dicta that mental

anguish alone is not compensable under Article 17. The

district court in this case relied almost exclusively on

Burnett in reaching its conclusion that Article 17 does not

allow recovery for mental injury. 629 F.Supp. at 313-14.

While the court in Burnett purported to apply the

French legal meaning of Article 17, 368 F Supp. at 1155, it

actually considered only the linguistic meaning of the

French words of Article 17 at issue. See Kreindler, 1

Aviation Accident Law § 11.03[2][b] at 11-43. We therefore

find its analysis unpersuasive. Furthermore, the plaintiffs’

action in Burnett was founded on state law, 368 F.Supp. at

App. A-25

even in the cases where the carrier in failing to

perform its contractual obligations infringed the

emotional condition of the passenger: his

sentiments of affection in delaying his arrival at

funeral ceremonies, the comfort to which he is

entitled by placing him in a baggage car, and even

for the simple inconvenience of delay in arrival.

Henri Nazeaud, Leon Mazeaud, and Andre Tunc, Traité

Théorique et Pratique de la Responsabilité Civile

Délictuelle et Contractuelle 416-17 (5th ed. 1957), quoted in

Burnett, 368 F Supp. at 1157.

The preliminary draft of the Convention itself, adopted

in May 1928 by the CITEJA, the interim committee formed

after the Paris Conference of 1925, placed all sources of

liability against the carrier in one article, Article 21, which

provided that:

"Le transporteur est reaponsable des accidents, pertes, avaries et

retards.” See Burnett, 368 F Supp. at 1157 (quoting French translation).

App. A-26

The carrier shall be liable for damage sustained

during carriage:

(a) in the case of death, wounding, or any other

bodily injury suffered by a traveler,

(b) in the case of destruction, loss, or damage to

goods or baggage;

(c) in the case of delay suffered by a traveler,

goods, or baggage.

Warsaw Convention, Preliminary Draft, reprinted in

Minutes at 264-65." The court in Burnett placed great

emphasis on this change, stating that

By thus restricting recovery to bodily injuries,

the inference is strong that the Convention

intended to narrow the otherwise broad scope of

liability under the former draft and preclude

recovery for mental anguish alone. Had the

"The French translation of proposed Article 21 read as follows:

le lranaporteur est responsable du dommage survenu pendani le

transport:

(a) en cas de mort, de blessure ow de toute autre lesion

corporelle subie par ur voyageur,

(b) en cas de destruction, perte ou avarie de marchandises ou

de bagages.

(c) en cas de retard subi par un voyageur, des merchandises ou

des bagages

See Miller at 124 nm. 74; Burnett, 368 F.Supp. at 1157 (reprinting

translation).

In the final version of the Convention, the former Article 21 was split

inte three articles governing carrier liability for injuries to persons.

damage or loss of goods, and delay, Articles 17, 18, and 19. The drafters

vrewed [his change purely as a matter of form, and did not intend the

change to effect actual carrier liability See Minutes at 84, 205-06 (“it's

not @ question of new articles but of a new numbering of the articles”)

(remarks of Mr Giannini, President of the Drafting Committee)

App. A-27

delegates desired otherwise, there would have been

no reason to so substantially modify the proposed

draft of the First Conference.

368 F.Supp. at 1157. We believe the court in Burnett was too

literal in its interpretation of the new language and

for any particular type of injury; the drafters simply did not

discuss the issue of whether purely emotional injury would

See Miller at 123-25.

There is a more fundamental problem with the Rosman

and Burnett analysis, the analysis that Eastern urges upon

this court. In drawing a sharp distinction between injury

caused by physical impact and purely mental injury, the

courts in Rosman and Burnett have taken the common law's

distinction between mental and physical injuries” and

“The common lew has long been reluctant to award recowery for

mental disturbance Three principal concerns prompted this judicial

concern (1) the problem of permitting recovery for harm thet is often

temporary in nature. (2) the danger that such claims wil! be feigned. and

W. Page Keeton, Dan B. Dobbs. Robert FE. Keeton, Devid G Owen,

Prosser and Keeton on Torte § 54 at 360-61 (Sth ed 1984) (“Prosser”).

This concern resulted in the “impect rule.” which allowed recovery for

emotional injgury only if eccompanmied by some physical infringement upon

the plaintiffs person. There has been «@ continuous relaxation of the

impact rule in the United States. See ¢g. Battalla » State of New York,

‘© N Ye 297 (1961) (holding thet mental anguish standing alone could

be compensated). Prosser § 54 at 362-65 (noting development of the lew).

(Footnote continued on neu page)

App. A-28

imposed it on Article 17 of the Warsaw Convention, a

creation of civil lawyers. See, e.g., Minutes at 66, 85; Block v.

Compagnie Nationale Air France, 386 F.2d 323, 331 (5th

Cir. 1967), cert. denied, 392 US. 905 (1968). As

demonstrated earlier in this opinion, there is no such

distinction in French law or other civil law systems. We are

convinced that Rosman and Burnett inappropriately

imported the common law doctrine.

Other cases have held that Article 17 of the Warsaw

Convention does contemplate recovery for mental anguish

unaccompanied by physical trauma.

The leading case in this line of cases is Husserl v. Swiss

Air Transport Co., 388 F.Supp. 1238 (S.D.N.Y. 1975)

(“Husserl IT’). In Husserl II, the court rejected the

argument that the French legal meaning of Article 17

governs recovery for mental anguish, and concluded that

conflicting interpretations of the term “bodily injury” were

“unconvincing and inconclusive.” 388 F.Supp. at 1250. The

court looked to the purposes of the Warsaw Convention and

the intent of its drafters to delineate a comprehensive

international scheme of recovery and concluded that

To effect the treaty’s avowed purpose, the types of

injuries enumerated should be _ construed

expansively to encompass as many types of injury

as are colorably within the ambit of the enumerated

types. Mental and psychosomatic injuries are

colorably within that ambit and are, therefore,

comprehended by Article 17.

388 F.Supp. at 1250.

We agree with the court’s conclusion in Husserl I] that

Article 17 encompasses recovery for mental injury, but the

(Footnote continued from previous page)

Lindauer, 41 J.Air L. & Com. at 342 (noting that “the impact rule has

been overruled in almost every jurisdiction”).

App. A-29

Supreme Court's mandate in Saks requires us to analyze

more deeply the French legal meaning of Article 17.

Furthermore, Husserl II was decided before Benjamins v.

British European Airways, 572 F.Supp. 913 (2d Cir. 1978),

cert. denied, 439 U.S. 1114 (1979), and its analysis was based

on the premise that the Warsaw Convention merely imposed

limits on state law causes of action. The court held that

“mental injury alone should be compensable, if the

otherwise applicable substantive law provides an

appropriate cause of action.” 388 F.Supp. at 1251. See also

Tarar v. Pakistan International Airlines, 554 F.Supp. 471,

480 (S.D.Tex. 1982).* For the reasons set forth above, we

cannot subscribe to this analysis. The Husserl I] court's

statements regarding the policies and goals of Warsaw,

however, are instructive.

Other courts have followed Husserl I] but have added

little to its analysis. See Borham v. Pan American World

Airways, 19 Aviation Cases 18,236 (CCH) (S.D.N.Y. March

5, 1986), Karfunkel v. Compagnie Nationale Air France, 427

F.Supp. 971 (S.D.N.Y. 1977), Krystal v. British Overseas

Airways Corp., 403 F Supp. 1322 (C.D.Cal. 1975).

The court in Palagonia v. Trans World Airlines, Inc.,

110 Mise.2d 478, 442 N.Y.S.2d 670, 675 (Sup.Ct. 1978),

engaged in an exhaustive analysis of the French legal

meaning of Article 17, relying on expert testimony to

conclude that lésion corporelle includes mental injury as

reccverable damage even absent physical trauma. Eastern

“Plaintiffs cite Tarar for the proposition that Article 17 authorizes

the recovery of damages for mental distress and other purely psychic

trauma. Eastern correctly points out that Tarar arose under Article 19 of

the Warsaw Convention which deals with damages due to delay in

transporting passengers, baggage, or goods. In addition, the court in Tarar

held that the Warsaw Convention did not create a cause of action and

applied Texas lew in determining that the plaintiffs stated a cause of

action for intentional infliction of emotional distress when the air carrier

was negligent in transporting the remains of plaintiffs’ decedent to his

homeland. 554 F.Supp. at 478-80.

App. A-30

argues that Palagonia demonstrates only that there is some

scholarly disagreement over the meaning of Article 17, and

correctly points out that the court did not examine the prior

and subsequent history of the Convention in arriving at its

conclusion. However, we have studied those materials and

find that they support Palagonia’s analysis and conclusion

that mental injury alone is recoverable. We find the

Palagonia analysis persuasive.

Finally, we conclude that our interpretation is

supported by the policies underlying the Convention. Our

interpretation is consistent with the policy of the

Convention to provide a comprehensive scheme of rules

governing international air travel. Husserl I], 388 F.Supp.

at 1250. It is also consistent with the important goal of the

Convention to ensure uniformity, both in matters of

documentation and matters of liability. Jd. at 1250. Were we

to accept Eastern’s contention that Article 17 does not

encompass recovery for emotional trauma, the plaintiffs

nonetheless might” be able to successfully pursue their state

law cause of action for intentional infliction of emotional

distress. See Part II, supra. Such a state law cause of action

would not be uniformly available. More important, this

"We emphasize that we expressly do not decide whether the state law

cause of action would be preempted if we had held that the Warsaw

Convention does not encompass a cause of action for purely mental injury.

That preemption issue is different from the one we address in Part IV.

That is, in Part IV, we decide that there is preemption in light of our

holding that the Convention does create a cause of action encompassing

purely mental injury. The preemption issue we do not decide is more

difficult and subtle than the one we do decide, and in fact in a related case

the District Court of Appeal of Florida, Third District, has held that air

travelers may “avail themselves of remedies available under local law

when the Warsaw Convention fails to provide a cause of action.” King v.

Eastern Airlines, Inc., 536 So.2d 1023, 1031 (1987). Our statement in text

that plaintiffs might be able to pursue their state law cause of action

without a $75,000 limit on liability is of course a possibility only if the

Florida court is correct.

App. A-31

ight” the plaintiffs in position to recover damages for

on plana which exceeded the $75,000 limit set by

the Montreal Agreement. It hardly seems consistent with the

intent of the Convention to place a strict cap of $75,000 on

damages for death or harm resulting from physical impact

while allowing unlimited recovery for purely emotional or

psychological injuries.

4. Summary

After careful consideration of the French legal meaning

of the treaty terms, the concurrent and subsequent

legislative history and conduct of the parties, the case law

and the policies underlying the Warsaw Convention, we are

persuaded that Article 17 provides recovery for purely

mental injuries unaccompanied by physical trauma. It is

important to note that this does not mean that courts will

allow recovery for every claim for mental injury up to

$75,000. The damages actually sustained by the plaintiffs

must be proved.

IV. PREEMPTION

We are bound by the Florida court's decision that the

facts of this case state a claim under Florida law for

intentional infliction of emotional distress.” Part II, supra.

In addition, we hold today that Article 17 creates a cause of

action for emotional injuries unaccompanied by physical

trauma. Part III, supra. Because both state law and the

Warsaw Convention may allow recovery for these alleged

injuries, we are asked to determine whether the Convention

preempts the plaintiffs’ state law cause of action.

"See note 26, supra.

“If t Supreme Court of Florida, which has accepted jurisdiction

over a rs case, holds that a cause of action for intentional infliction of

emotional distress does not exist under Florida law, the district court wil!

be bound by that holding on remand. Of course, if there is no state law

cause of action, there would be no question of preemption. Our discussion

of the preemption issue would become moot. See Part II, supra.

App. A-32

Plaintiffs argue that Article 17 of the Convention does

not preempt all remedies available to an international air

traveler; rather, they contend, it excludes recovery based on

local law only for injuries which are inconsistent with the

Warsaw Convention. The plaintiffs concede, as they must,

that where local law conflicts with the Convention, the rules

of the Convention must prevail. Eastern contends that the

Warsaw Convention provides the exclusive avenue of

recovery for passengers involved in an “accident” within the

meaning of Article 17, and thus that all of plaintiffs’ state

law claims are barred.

As an international treaty accepted by the United

States, the Warsaw Convention is binding. Dalton v. Delta

Airlines, Inc., 570 F.2d 1244, 1246 (5th Cir. 1978). The

Supremacy Clause of the United States Constitution

provides that “all Treaties made, or which shall be made,

under the Authority of the United States, shall be the

supreme Law of the Land; and the Judges in every State

shall be bound thereby, any Thing in the Constitution or

Laws of any State to the Contrary notwithstanding.”

U.S.Const.art.VI. Any state law in conflict with a treaty of

the United States is invalid. Ray v. Atlantic Richfield Co.,

435 U.S. 151, 157-58, 98 S.Ct. 988, 994 (1978). Therefore, the

Warsaw Convention preempts any state law which is

inconsistent with it. Highlands Insurance Co. v. Trinidad

and Tobago (BWIA International) Airways Corp., 739 F.2d

536, 537 mn. 2 (11th Cir. 1984) (“Warsaw Convention

preempts local law in areas where it applies”); Burnett v.

Trans World Airlines, Inc., 368 F.Supp. 1152, 1155 (D.N.M.

1973).

Courts have not hesitated to apply this principle in

Warsaw Convention cases. In Butler v. Aeromexico, 774 F.2d

429 (11th Cir. 1985), for example, this court held that the

district court did not err in awarding compensatory damages

tv crash victims when Alabama wrongful death law provided

only for recovery of punitive damages. The court stated that

App. A-33

Alabama law “conflicts with the tenor of the Warsaw

Convention, which contemplates compensation for victims

of air disasters.” 774 F.2d at 431. See In re Aircrash in Bali,

Indonesia On April 22, 1974, 684 F.2d 1301, 1307-08 (9th

Cir. 1982) (court held that “California law is preempted by

the Warsaw Convention to the extent that California law

would prevent the application of the Convention's limitation

on liability”), later appeal, No. 86-6453, 1989 U.S. App.

LEXIS 3725 (9th Cir. Mar. 27, 1989); Kapar v. Kuwait

Airways Corp., 845 F.2d 1100, 1104 (D.C.Cir. 1988)

(“admiralty cases involving international air transportation

must satisfy the Convention's requirements”) (emphasis in

original). These cases and the Supremacy Clause itself

squarely stand for the proposition that when state law

conflicts with a provision of the Warsaw Convention, the

rules of the Convention must govern.

Conversely, where the Warsaw Convention does not

apply at all — for example, to an injury suffered after

disembarkation” — causes of action based on state law can

go forward. The Convention does not prohibit state or

federal causes of action based on situations which the

Convention was not intended to govern. The title of the

Convention itself suggests that it was not intended to cover

the entire relationship between air carriers and passengers

— the Convention was to unify “Certain Rules Relating to

International Transportation by Air,” not all rules relating

to international transportation by air. The delegates to the

Convention carefully chose to include this qualification in

the title.” In those aspects of the passenger-carrier

"See Martinez Hernandez v. Air France, 545 F.2d 279 (ist Cir. 1976),

cert. denied, 430 U.S. 950 (1977).

“Minutes at 188 (statement of Mr. Giannini, President of the

drafting committee) (“We have adopted the title: ‘Convention for the

Unification of Certain Rules Relating to International Carriage by Air’

This suffices to say that this Convention does not provide for the entire

matter and gives satisfaction to certain delegations such as the

(Footnote continued on next page)

App. A-34

relationship which the Convention does not address, it does

not apply at all, and local law must govern. See Mankiewicz

at 13-15.

Courts considering this question have adhered to this

proceed on other grounds after concluding that the Warsaw

Convention did not apply." See Kreindler, 1 Aviation

Accident Law § 11.07 at 11-93,94; Abramson v. Japan

Airlines Co., Ltd., 739 F.2d 130 (3d Cir. 1984) (where Article

17 of the Warsaw Convention was not applicable because

there was no “accident,” the court held that there was no

preemption of plaintiffs state law cause of action for

negligent failure to assist a sick passenger suffering from an

attack associated with a preexisting hernia condition), cert.

denied, 470 U.S. 1059 (1985).

We easily conclude that this case falls in the first

category — i.e., it is a case where the Convention applies and

(Footnote continued from previous page)

Czechoslovak Delegation, which asked that the word ‘Certain’ be

added.”). See Minutes at 134-35; 176, 182-83 (statements emphasizing

that the Convention was not intended to govern completely international

air transportation).

This is the approach taken by the Florida Court of Appeals in the

King case. After it held that the Convention did not create a cause of

action for emotional injury, the court held that the Convention did not

preempt the state lew claim for intentional infliction of emotiona! distress.

See 532 So.2d at 1075-76.

“See also Wogel v. Mexicana Airlines, 821 F.2d 442 (7th Cir.) (action

for discriminatory “bumping” from flight; held that since plaintiffs sought

damages for the bumping itself under the Federal Aviation Act rather

than incidental damages due to delay, the claims fel! outside the scope of

the Warsaw Convention), cert. denied _... US. ____., 108 S.Ct. 1

(1987); Schmudkunz v. Scandinavian Airlines System, 628 F.2d 1205,

1207 (9th Cir. 1980) (reaching plaintiff's negligence claim after disposing

of her Warsaw claim), Martinez Hernandez v. Air France, 545 F.2d 279,

284 (Ist Cir. 1976) (holding that passenger injured after disembarkation is

left “to remedies of local law”), cert. denied, 430 U.S. 950 (1977).

App. A-35

preempts inconsistent local law. The engine failure in

question was an “accident” within the meaning of the

Convention, and we have determined in Part III that Article

17 applies in this case and provides recovery for mental

injuries unaccompanied by physical impact. Where the

Convention applies, it preempts any inconsistent state law

provision. Butler v. Aeromexico, 774 F.2d 429 (lith Cir

1985). Plaintiffs’ brief concedes, and we agree, that Eastern

|

|

:

q

recovery and the exclusive remedy in the areas it governs. See Boehringer.

Mannheim Diagnostics, Inc. v. Pan American World Airways, Inc, 73)

F 2d 4546, 459 (5th Cir. 1984) (court refused to award attorney's fees under

Texas law and held that the Convention preempted plaintiff's negligence

cause of action, stating that “[h)aving concluded thet the Warsaw

Convention creates the controlling cause of action, we further conclude

that it preempts state law in the areas covered:” court implied that all

stale law causes of action would necessarily conflict with the Convention

(Footnote continued on next page)

App. A-36

denied, 470 US. 1059 (1985); Benjamins v. British European Airways,

572 F.2d 913, 919 (2d Cir. 1978) ("the desirability of uniformity in

international air law can best be recognized by holding that the

Convention, otherwise universally applicable, is also the universal source

of a right of action”), cert. denied, 439 US. 1114 (1979); Stanford wv

Kuwait Airlixes Corp., 1989 U.S.Dist. LEXIS 614 (S.D.N.Y. Jan. 16,

1989) (“[t}he terms of Warsaw Convention exclusively govern the

rights and liabilities of the parties”); Harpalani v. Air India, Inc., 622

F Supp. 69, 73 (N_D.1. 1985) (Warsaw claim provides exclusive remedy

for delays in air transportation, plaintiffs’ non-Warsaw claime dismissed)

on

Jahanger v Purolator Sky Courier, 615 F Supp. 29, 32 (E.D.Pa. 1985)

Johnson uv American Airlines, Ine , 634 F.2d 721, 723 (9th Cir. 1987)

‘[s}tate-law claims allowing damages for injuries to

international air transportation can only be maintained subject

22, 1974, 684 F.2d 1301, 1311 m 8 (9th Cir 1982) (“the Convention has

never been read to limit plaintiffs to « cause of action arising thereunder.

but rather to limit the recovery in suits for injury”) (emphasis in original),

(Footnote continued on next page)

App. A-37

Agreement’s waiver of the airlines’ due care defense, and the

other provisions of the Warsaw system apply in this case.

A. Punitive Damages Under the Warsaw Convention

The plaintiffs argue that Article 25 of the Warsaw

Convention creates an independent cause of action which

authorizes the recovery of punitive damages. Plaintiffs argue

that Article 25 not only removes the limitation on

compensatory damages contained in Article 22 as modified

by the Montreal Agreement, but that Article 25 also creates

(Footnote cominued from previous page)

later appeal, No. 86-6453, 1989 U.S. App. LEXIS 3725 (9th Cir. Mar. 27,

1989), Tokto Marine & Fire Insurance Co. v. McDonnell Douglas Corp.,

617 F.2d 936, 942 (2d Cir. 1980) (stating that Article 24 “indicates that

[the drafters) did not intend that cause of action to be exclusive”): Jn re

Air Crash Disaster at Gander, Newfoundland, 660 F Supp. 1202, 1221

(W_D Ky. 1987) (Warsaw not intended to displace state law), Rhymes

Arrow Air, Ine, 636 F Supp. 737, 740 (S.D.Pla. 1986) (Article 24(1)

“contemplates the application of the convention limitations to actions

founded on « basis other than that of the convention”); Perkin Elmer

Computer Systems Div. v. Trans Mediterranean Airways, SAL, 107

F.RLD. 55, 61 (F.D.N_Y. 1966) (“state law cause of action may be available.

even if @ federal claim exists under the Convention”)

App. A-38

(1) The carrier shall not be entitled to avail

himself of the provisions of this convention which

exclude or limit his liability, if the damage is caused

by his wilful misconduct or by such default on his

The structure of the Convention, the subsequent

interpretation by the parties, and the unanimous case law

persuade us that Article 25 operates only to remove the

liability limitations of Article 22 in cases of “willful

misconduct” by the air carrier, and was not intended to

provide an independent right of action.

The provisions of the Convention which create liability

for injuries to passengers, damage to baggage and cargo, and

delay, Articles 17, 18, and 19, are entirely compensatory in

tone and structure. Jn re Air Crash Disaster at Gander,

Newfoundland, 684 F Supp. 927, 931 (W.D.Ky. 1987). If a

Agreement, imposes a $75,000 limit on the carrier's liability

which is created in Articles 17-19. In cases of willful

misconduct, Article 25 strips the carrier of the liability

“Plaintiffs have not suggested an alternative French legal meaning of

Article 25, nor has our research uncovered any, with the exception of the

controversy surrounding the precise meaning of “willful misconduct,”

which we discuss briefly in Part VI, infra

App. A-39

limit his liability” used in Article 25 refers to the limitation

on liability contained in Article 22, and does not create an

Kreindler, Auation Law Documenta Supp at 997 (emphasis added)

While the United States has not ratified the Hague or Montreal Protocols.

we. like other courts, find their clarification of the operation of Article 25

to be instructive. Highlands, 799 F 2d at 599 0.10. See Saks, 470 US at

—-»} 105 SCL at 1344 (Court relied on subsequent actions by

contracting parties which have not been ratified by the Senate in

interpreting Article 17 of the Convention)

App. A-40

_—

A

A A

of defendant's crew amounted to ‘wilful misconduct’ within the meaning

of Article 25 of the Warsaw Convention so as to render inapplicable the

convention's $75,000 00 imitation of hatilty provision (Article 22)” 774

(Footnote continued on next page!

App. A-41

ndonesia on April 22, 1974, G84 F.2d 1301 (Sth Cir. 1962), later appeal,

ea 00-4e0a, ted US. hep. LEXIS ST98 Cir. Mar. 27, 1989), does

the court suggest thet Article 25 offers an independent svurce of a right of

ection In fact, when discussing the Convention in general terms, the court

states thet Article 25 “excepts from the limit on the carrier's liebility,

inyury or death caused by the carrier's ‘willful misconduct 684 F.2d at

1205 Finally. in effirming the court below, the court in Compeme de

Aviecion Faucett SA oe Mulford, 386 So. td MO, Wi

|980) expressly stated thet “the court found thet

been guilty of ‘wilful misconduct’ under Article 25(1) so a to render

inapplicable the provisions of Article 22/2) of the Warsew Convention. It

vs difheult te construe this language as suggesting that Article 25 operates

as a separate ground for recovery

“Plaintiffs do not argue thet the cause of ection fer personal injuries

created by Article 17 authorizes recovery of punitive damages We agree

that Article 17 contemplates only compensatory damages, which we see

below has considerable significance in our resection of plaintiffs’ argument

that the Convention's “silence” on the issue of punitive damages allows

them lo recover punitive damages under siate lew

App. A-42

Plaintiffs argue that recovery of pun‘ tive damages under

state law is not inconsistent with the Warsaw Convention.

(1) In the cases covered by articles 18 and 19

any action for damages, however founded, can only

be brought subject to the conditions and limits set

out in this convention.

are the persons who have the right to bring suit and

what are their respective rights.

Article 24 thus requires this court to determine whether

a conflict, and therefore hold that plaintiffs’ claim for

“Because the district court held that plaintiffs could not state a cause

of action under the Warsaw Convention, 629 F Supp. at 312-14, it did not

address the question of whether awarding punitive damages under state

law would conflict with the Convention.

"While the French legal meaning of the Warsaw Convention controls

its interpretation, see Part III, supra, we need not set out the original

French text of Article 24 here because the precise legal meaning of the

terms has not been questioned. See Denby v. Seaboard World Airlines,

Ine., 737 F.2d 172, 177 (2d Cir. 1984) (Friendly, J.) (“As a practical

matter, however, American lawyers and courts have initially addressed

themselves to the English text and have consulted the French text only

when there is a substantial contention that it has a different meaning").

App. A-43

punitive damages under Florida law is preempted by the

Warsaw Convention.

Before we address the question of whether an award of

punitive damages under state law would conflict with the

Convention, we must first determine whether the

Convention itself contemplates recovery for punitive

damages.” We have already rejected plaintiffs’ argument

that Article 25 creates a separate cause of action for “willful

misconduct” that contemplates the recovery of punitive

damages. For the reasons indicated below we also conclude

“Apart from the liability limitations contained in Article 22 of the

Convention, the issue of the computation of damages generally is

governed by local law, except, of course, where such law conflicts with the

Convention. Harris v. Polskie Linie Lotnicze, 820 F.2d 1000, 1002 (9th

Cir. 1987); In re Aircrash in Bali, Indonesia on April 22, 1974, 684 F.2d

1301, 1315 (9th Cir. 1982), later appeal, No. 86-6452, 1989 US. App.

LEXIS 3725 (9th Cir. Mar. 27, 1989); Mertens v. Flying Tiger Line, Inc.,

341 F.2d 851, 858 (2d Cir.), cert. denied, 382 U.S. 816 (1965); Cohen v.

Varig Airlines, 62 A.1D.2d 324, 405 N.Y.S.2d 44, 49 (1978). See Kreindler,

1 Aviation Accident Law § 11.08 at 11-94. As the discussion in the text

indicates, the issue in this case — whether the state law claim for punitive

damages is inconsistent with the Convention — is not merely a matter of

computation of damages; rather we hold that the state law claim for

punitive damages is inconsistent with the compensation scheme

established by the Convention.

Courts sometimes have had difficulty determining exactly when a

local law damage provision conflicts with the Convention. See, ex,

O'Rourke v. Eastern Air Lines, Inc., 553 F Supp. 226, 228 (E.D.N.Y. 1982)

(determination whether prejudgment interest available in action arising

out of plane crash “must be determined solely with respect to the Warsaw

Convention/Montreal Agreement. Al! local law to the contrary. . . must

therefore be preempted”), aff'd in relevant part 730 F.2d 842, 851-53 (2d

Cir. 1984) (court refused to allow prejudgment interest in a case governed

by the Convention); Deere & Co. wv. Deutsche Lufthansa

Ahktiengesellschaft, 855 F.2d 385, 391-92 (7th Cir. 1988) (same). But see

Domangue v. Eastern Air Lines, Inc., 722 F.2d 256 (5th Cir. 1984)

(prejudgment interest, subject to damage limits, allowed in a Warsaw case

because it furthers the purpose of speeding settlement and recovery); Eli

Lilly Argentina, S.A. v. Aerolineas Argentinas, 133 Misc.2d 858, 508

N.Y.S.2d 865 (N.Y.Civ. 1986) (same).

App. A-44

A

that Article 17 does not authorize recovery of punitive

damages. In fact, plaintiffs do not argue that it does; rather,

they contend that they have both a state law cause of action

for intentional infliction of emotional distress (which

permits recovery of punitive damages in appropriate cases)

and a Warsaw Convention cause of action (which is silent on

punitive damages). Because the Convention is silent on the

issue, they contend that an award of punitive damages would

be consistent with the provisions of the Convention.

It is true that the text of the Convention does not

explicitly address the issue of punitive damages. However,

we do not think plaintiffs can take much comfort in this

“silence.” The basis for recovery for passengers who suffer

death or personal injury in international air travel is Article

17 of the Convention. Our study of the text and structure of

the Convention, and the concurrent and subsequent

legislative history persuade us that Article 17 is entirely

compensatory in nature.

As we have previously noted, Article 17 of the

Convention provides that “Le transporteur est responsable

du dommage survenu en case de mort, de blessure ou de

toute autre lésion corporelle...” (emphasis added). We

have already concluded that /ésion corporelle encompasses

the concept of mental or emotional injury. Part III, supra.

Plaintiffs’ contention that the Convention authorizes the

recovery of punitive damages requires us to analyze the

meaning of dommage survenu (‘damage sustained”) in order

to determine whether that phrase allows punitive damages.

Plaintiffs have pointed to no authority suggesting that

the French legal meaning of Article 17 permits recovery of

punitive damages, and we have found no such authority. See

Saks, 470 U.S. at —__, 105 S.Ct. at 1342 (French legal

meaning controls terms of Convention). In fact, what we

have found indicates otherwise. In civil law systems, an

action under the Warsaw Convention sounds in contract.

Block v. Compagnie Nationale Air France, 386 F.2d 323, 331

App. A-45

(5th Cir. 1967), cert. denied, 392 U.S. 905 (1968); Nicolas

Mateesco Matte, Treatise on Air-Aeronautical Law 403-04

(1981). The parties may agree to a penalty clause, but

the Civil Law No. 247 at 149 (11th ed. 1959) (Louisiana State

Law Institute translation) (“{tjhe indemnity should

represent exactly as possible the real damage suffered by the

creditor”); Barry Nicholas, French Law of Contract 226

(1982) (“The overriding principle [in assessing damages) is

that damages should compensate the creditor for the loss

suffered. The expression of disapproval of the debtor's

conduct has no place in the assessment of damages’’).

The plaintiffs in Jn re Air Crash Disaster at Gander,

Newfoundland, 684 F.Supp. 927 (W.D.Ky. 1987), argued

that the word “survenu” in Article 17 was more

We also find significance in the fact that the only

provision of the Convention which addresses remedies for

intentional or reckless acts by the carrier, acts usually

associated with the recovery of punitive damages in the

United States," did not address the issue of punitive

damages at all. Rather, as we have already demonstrated,

Article 25 provided only that the strict limit on liability for

“See Dorsey v. Honda Motor Co., 655 F.2d 650, 657-58 (5th Cir. Unit

B 1981), cert. denied, 459 U.S. 880 (1982), later proceeding 730 F.2d 675

(11th Cir. 1984); Prosser § 2 at 9-10.

App. A-46

compensatory damages was to be lifted in cases of

intentional or willful acts.

Nowhere in the Minutes of the Convention is there any

mention of deterring misconduct by imposing punitive

damages on derelict air carriers. See generally Minutes.

Thus, the concurrent legislative history supports the

interpretation that the Convention contemplates recovery of

only compensatory damages.

Unlike lésion corporelle, subsequent interpretations of

the parties have cast no doubt as to the accuracy of the

translation of dommage survenu as “damage sustained.”

The official English translation adopted at the Hague in

1955, the United States State Department translation which

accompanied the Convention when it was ratified by the

Senate, and the Guatemala Protocol all use the “damage

sustained” language. See 49 U.S.C. note following § 1502

(American translation), Kreindler, Aviation Law Documents

Supp. at 955, 975 (official English translation, Guatemala

Protocol).

We are thus convinced that the plaintiffs’ claim for

punitive damages finds no support in the Convention, either

in those provisions creating liability (Articles 17-19) or in the

provision which allows full compensation in cases of willful

misconduct by the air carrier (Article 25). Plaintiffs contend,

however, that their state law claim for punitive damages

does not conflict with the Convention's “silence” on punitive

damages. We disagree, and conclude that recovery of

punitive damages under state law would conflict with the

scheme of recovery established by the Convention.

We note at the outset the significant difference between

punitive damages and compensatory damages. Punitive

damages are not intended to compensate victims, but rather

are private fines, awarded in addition to what is necessary to

compensate victims, levied by civil juries to punish a

defendant for his conduct and to deter others from engaging

App. A-47

in similar conduct in the future. See City of Newport v. Fact

Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 2759 (1981);

International Brotherhood of Electrical Workers v. Foust,

442 U.S. 42, 48, 99 S.Ct. 2121, 2125-26 (1979); Prosser § 2 at

9-15.% As our discussion has indicated, the Warsaw

Convention contemplated recovery of only compensatory

damages. We believe that the intent of the Convention to

provide compensatory damages suggests that it would be

inconsistent to allow punitive damages which serve a

purpose very different from compensating victims.

This conclusion is supported by the purposes and goals

of the Convention to limit strictly the liability of the airlines

and to provide a uniform and comprehensive scheme of

liability. The Convention was intended to place strict limits

on air carrier liability for accidents, as well as to ensure at-

least a measure of compensation for accident victims. See

Lowenfeld and Mendelsohn, 80 Harv.L.Rev. at 498-501; Part

Ill, supra. -Holding that the punitive damages ave

unavailable in an action governed by the Warsaw

Convention furthers the goal of certainty of liability. See

Reed v. Wiser, 555 F.2d 1079, 1089 (2d Cir.) (“It is beyond

dispute that the purpose of the liability limitation

prescribed by Article 22 was to fix at a definite level the cost

to airlines of damages sustained by their passengers and of

insurance to cover such damages.”), cert. denied, 434 U.S.

922 (1977) Allowing punitive damages in Warsaw

Convention cases would undermine this strict limitation of

liability, which was the central feature of the Warsaw

“While mental injuries (dommage moral in the civil law) are

intangible in nature, allowing recovery for them is intended to be

compensatory, and is in no way meant to penalize the wrongdoer See

MeGee v. Yazoo & M_V.R. Co., 206 La. 121, 19 So.2d 21 (1944) (“damages

for mental anguish or suffering are actual rather than exemplary or

punitary”); Barry Nicholas, French Law of Contract 220-23 (1982);

Marcel Plaino! and George Ripert, 2 Treatise on the Civil Law Nos. 867-

868A at 470-73 (iith ed. 1959) (Louisiana State Law Institute

translation).

App. A-48

om

system. See Trans World Airways, Inc. v. Franklin Mint

Corp., 466 U.S. 243, 256, 104 S.Ct. 1776, 1784 (1984).

|

)

|

a primary goal of the Convention. See Reed v. Wiser, 555

the

7

|

F

z

|

4

922 (1977), Block v. Compagnie Nationale Air France,

F.2d 323, 337-38 (Sth Cir. 1967) (“The Court

a1

38 8:

|

,

Cir. 1984), cert. denied, 469 U.S. 1186 (1985). It would

contravene the Convention's goal of uniformity should there

be recovery for punitive damages in some forums and not in

others.

App. A-49

We have found no case in which a court awarded

punitive damages in a case governed by the Convention, and

we decline to depart from this uniformity. In Butler v.

Aeromexico, 774 F.2d 429 (11th Cir. 1985), this court held

that the Convention preempted Alabama law regarding

damages for wrongful death. In that case, the court stated

that Alabama law, which allows recovery for only punitive

damages in a wrongful death case, “conflict[ed] with the

tenor of the Warsaw Convention, which contemplates

compensation for victims of air disasters.” 774 F.2d at 431

(emphasis added). While the court in Butler did not squarely

hold that only compensatory damages are available under

the Warsaw system, the decision clearly points to that result,

which we make explicit today.

The only decisions which have explicitly confronted tlfe

issue also support our conclusion. After undertaking an

analysis similar to the one above, the court held in Jn re

Aircrash Disaster at Gander, Newfoundland, 684 F.Supp.

927 (W.D.Ky. 1987), that “the Warsaw Convention by its

terms and history allows compensatory damages claims

against carriers arising under state law but excludes punitive

damages claims” in wrongful death actions under Article 17.

684 F.Supp. at 933 (emphasis in original). The court in

Gander also held that the Convention preempted plaintiffs’

state law claims for punitive damages. Jd.; see Harpalani v.

Air-India, Inc., 634 F.Supp. 797 (N.D.IIl. 1986) (court struck

plaintiffs’ claim for punitive damages under Article 19 of the

Convention), disapproved on other grounds Wolgel v.

Mexicana Airlines, 821 F.2d 442, 445 (7th Cir.), cert. denied,

U.S. ___, 108 S.Ct. 291 (1987).*

“Plaintiffs cite Hill v. United Airlines, 550 F.Supp. 1048 (D.Kan.

1982), to support their contention that the Convention contemplates

recovery of punitive damages. In Hill, the court claimed damages for

intentional misrepresentation arising out of international air

transportation. The court initially found that “[lliability, if any, is

predicated on defendant's commission of the tort of misrepresentation, a

(Footnote continued on next page)

App. A-50

:

:

:

:

‘

-

We conclude that the Warsaw Convention itself

provides for recovery of compensatory damages only, and

that it would be inconsistent with the Convention’s scheme

of recovery to allow plaintiffs to recover punitive damages on

their state law cause of action. Therefore, we hold that the

Convention preempts plaintiffs’ claim under Florida law for

punitive damages.

VI. WILLFUL MISCONDUCT ON REMAND

While it is clear that Article 25 does not provide an

independent basis for holding Eastern liable for punitive

damages, it is possible that the facts alleged here constitute

willful misconduct and serve to remove the liability

limitations on compensatory damages of Article 22 and the

Montreal Agreement.“

(Footnote continued from previous page)

circumstance completely outside of the Warsaw Convention.” 550 F.Supp.

at 1054. The court went on, however, to state that “while the Warsaw

Convention is basically the controlling law in this case, plaintiffs have

properly invoked the provisions of Article 25(1), which make an exception

to defendant's limited liability and might entitle plaintiffs to recover

actual and punitive damages. .. . ” 550 F.Supp. at 1056. It is not clear

whether the court in Hill held that punitive damages are recoverable in an

action governed by the Convention, since the court appeared to hold that

the Convention was inapplicable to the facts of that case. In any event, to

the extent that Hill authorizes recovery of punitive damages under the

Warsaw Convention, we decline to accept its holding. See Jn re Air Crash

Disaster at Gander, Newfoundland, 684 F.Supp. 927, 933 (W.D.Ky. 1987).

“The precise formulation of Article 25 has been a subject of

international scholarly and judicial dispute. The French version cf Article

25(1) read as follows:

(1) Le transporteur n’aura pas le droit de se prevaloir des

dispositions de la presente Convention qui excluent ou limitent

sa responsabilite, si le dommage provient de son dol ou d'une

faute qui, d’apres la loi du tribunal saisi, est considere comme

equivalente au doi.

(Footnote continued on next page)

App. A-51

This question must first be addressed by the trial court

on remand. Willful misconduct is a question of fact and

should be addressed in the first instance by the district

court. Butler v. Aeromexico, 774 F.2d 429, 432 (11th Cir.

1985); Abramson v. Japan Airlines Co., Ltd., 739 F.2d 130,

135 (3d Cir. 1984), cert. denied, 470 U.S. 1059 (1985).

Determining whether willful misconduct occurred in a given

case is an extremely fact-sensitive inquiry. The plaintiff has

the burden of proving willful misconduct by the air carrier.

Berguido v. Eastern Air Lines, Inc., 317 F.2d 628, 629 (3d

Cir.), cert. denied, 375 U.S. 895 (1963); Grey v. American

Airlines, Inc., 227 F.2d 282, 285 (2d Cir. 1955), cert. deniec’,

350 U.S. 989 (1956); Domangue v. Eastern Air Lines, Inc.,

531 F.Supp. 334, 341 n. 51 (E.D.La. 1981); Speiser and

Krause § 11.37 at 772.

(Footnote continued from previous page)

The term “dol” has_no precise common law analogue. It does seem

evident, however, that the term “willful misconduct” expressed the intent

of the drafters of the Convention at the time, any doubts about the precise

terminology notwithstanding. See Minutes at 59 (Sir Alfred Dennis,

leader of the British delegation, stated that “[wje have at home the

expression ‘willful misconduct’; I believe that it covers all that which you

mean; it covers not only deliberate acts but also careless acts done without

regard for the consequences.”); Miller at 80 (“[i]n an English court, air

carriers would be subjected to unlimited liability in cases of wilful

misconduct, and, in civil law courts, there would be unlimited liability in

cases of dol”). American courts have relied upon the term “willful

misconduct” as the correct manifestation of the drafters’ intent. See, e.g.,

Butler v. Aeromexico, 774 F.2d 429, 430 (11th Cir. 1985); Koninklijke

Luchtvaart Maatschappij N.V. KLM Royal Dutch Airlines Holland v.

Tuller, 292 F.2d 775 (D.C.Cir.), cert. denied, 368 U.S. 921 (1961); Pekelis

v. Transcontinental & Western Air, Inc., 187 F.2d 122, 125 n. 2 (2d Cir.),

cert. denied, 341 U.S. 951 (1951); American Airlines, Inc. v. Ulen, 186

F.2d 529, 533 (D.C.Cir. 1949) (Minutes of the Convention “show little

more than that the delegates were at the time in disagreement as to what

terms would express their intent when translated into various

languages’).

App. A-52

VII. AMENDMENT OF COMPLAINTS

Plaintiffs in two of the twenty-five cases before us on

appeal, Sandy Dix and Gary Dix (case number 84-0030) and

Salim Khoury and Deborah Khoury (case number 84-1703),

sought leave to amend their complaints to allege physical

injury resulting from the events on Flight 855. The district

court denied their motions to amend. We hold that the trial

court abused its discretion in refusing to allow these

plaintiffs to amend their complaints to allege physical

injury.

In denying these plaintiffs’ motions to amend, the

district court stated that “the question of whether any of the

Plaintiffs have sustained physical injuries has been an issue

in this case for over a year.” Order Denying Motion for

Reconsideration 4 (April 28, 1986) (R 3-125:4). Although they

did not seek to formally amend their complaints until after

the district court’s dismissal of their initial complaints, the

Dix and Khoury plaintiffs had offered to amend their

complaints as early as June, 1985, in a memorandum filed in

opposition to Eastern’s motion to dismiss. The mere passage

of time, without anything more, is an insufficient reason to

deny leave to amend. Dussouy v. Gulf Coast Investment

Corp., 660 F.2d 594, 597-98 (5th Cir. 1981). See Foman v.

Davis, 371 U.S. 178, 182, 83 S.Ct. 227 (1962). Here, the

plaintiff's offer to amend was made in response to the

defendant’s initial challenge to the sufficiency of the

complaint. Any delays thereafter were due to scheduling

delays, not to any dilatory actions by the plaintiffs who

sought leave to amend. Eastern did not allege any prejudice

due to this alleged delay; in fact, it apparently consented to

amending the complaints to show physical injury.“ Because

“At a January 21, 1986 hearing on the motions to dismiss, counsel for

Eastern stated that “(t)here are some cases which I think haven't been

pled, and there are cases which certainly you could give them the

opportunity to amend a subsequent physical sequellae.” SR 1:26. The trial

(Footnote continued on next page)

App. A-53

we have held that physical injury is not necessary to state a

claim under the Warsaw Convention, a lack of physical

injuries is not fatal to these plaintiffs’ complaints.

Nevertheless, a showing of physical injury may affect the

plaintiffs’ recoverable damages, and we therefore reverse the

district court’s denial of their motion to amend.

For these reasons, we hold that the trial court abused its

discretion in refusing to allow the Dix and Khoury plaintiffs

leave to amend their complaints to allege physical injury.

VIII. CONCLUSION

In conclusion, we currently are bound by the Florida

decision that the plaintiff passengers on Eastern Flight 855

have stated a cause of action for intentional infliction of

emotional distress under Florida law. Final resolution of that

issue must await the Supreme Court of Florida’s decision on

the issue. We hold that the plaintiffs’ allegations of

emotional injury are sufficient to state a cause of action

under the Warsaw Convention. We also hold that this

Warsaw Convention cause of action preempts those aspects

of the state law cause of action which ict with the

Convention, including plaintiffs’ claim for panitive damages.

In addition, plaintiffs allegations of willful misconduct under

Article 25 of the Warsaw Convention serve not as an

independent basis for relief, but only to remove the liability

limitations of the Convention if willful misconduct can be

demonstrated. Whether Eastern’s actions in this case

constituted willful misconduct is for the district court to

determine on remand. Finally, we reverse the district court’s

denial of leave to amend the Dix and Khoury complaints.

REVERSED and REMANDED.

(Footnote continued from previous page)

court construed this concession to amendment “to extend only to those

complaints wherein there appeared an allegation of some type of physical

injury.” R 3-126:4.

App. A-54

APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MDL 575 ALL CASES (DAVIS)

IN RE: EASTERN AIRLINES, INC., ENGINE FAILURE,

MIAMI INTERNATIONAL AIRPORT ON MAY 5, 1983.

ORDER DISMISSING COMPLAINTS

WITH PREJUDICE*

(February 3, 1986)

THIS MATTER is before the Court on Defendant

EASTERN AIRLINES, INC.’s, Motion for Judgment on the

Pleadings. On January 21, 1986, a hearing was held on

Defendant’s Motion. After review of the memoranda

submitted in support of and in opposition to this motion,

and upon consideration of the arguments presented at the

hearing on this motion, it is

ORDERED AND ADJUDGED that the Complaints

filed in this case are DISMISSED with prejudice. The

parties are directed to the “DISPOSITION OF THE

COMPLAINTS” section, captioned below, for the precise

disposition of each Complaint.

DISCUSSION

This action arose on or about May 5, 1983, out of

Eastern Airline’s Flight No. 855, bound for Nassau,

Bahamas, from Miami International Airport, Miami,

Florida. Shortly after take-off, one of the aircraft’s engines

failed, and the plane turned around for return and landing in

Miami. After turning around, the aircraft's other two

engines failed.

*All MDL 575 cases are hereby dismissed with prejudice, with the

exception of Case NO. 84-1259-CIV-GONZALEZ. See “Disposition of

Complaints” Section, infra at 15-21.

App. B-1

The crew and passengers prepared for ditching of the

aircraft as it lost altitude due to the engine failure. After a

period of flight without any engines, the crew was able to

restart one engine, under whose sole power the plane landed

at Miami International Airport.

Each of the Complaints filed in this case contains four

basic counts: one in contract, two in tort, and one under the

Warsaw Convention. Defendant EASTERN AIRLINES,

INC., has filed a Motion for Judgment on the Pleadings,

asserting, inter alia, that nowhere in the Complaints are

there allegations that Plaintiffs sustained physical injury,

bodily injury, impact and/or direct physical contact during

or resulting from the subject flight. Defendant argues the

Complaints fail to state claims upon which relief can be

granted.

This Order is directed to the sufficiency of the Plaintiffs’

allegations under state law, i.e., under Breach of Contract

(Count I), Negligence (Count II), and entire Want of Care

(Count III) theories,’ and under federal law, pursuant to the

Warsaw Convention (Count IV).

COUNT I—EASTERN’S BREACH OF CONTRACT

TO USE THE HIGHEST DEGREE OF CARE

Plaintiffs contend that the state claim aspects of this

case are governed by Kirksey v. Jernigan, 45 So.2d 188 (Fla.

1950). The Court finds that Kirksey does not support

)

‘Although the Plaintiffs claim it “is hardly axiomatic that Florida law

will be applicable,” see Plaintiffs’ Memorandum Opposing Defendant's

Motion for Judgment on the Pleadings at 2 n.3, both Plaintiffs and

Defendant argued the sufficiency of the state law claims as governed by

the law of Florida. Under both conflicts of law principles and the Erie

doctrine, this Court concludes that the substantive law of Florida governs

the state law claims. See Klaxon v. Stentor Electric Manufacturing Co.,

313 U.S. 487, 61 S.Ct. 1020 (1941); Erie Railroad Co. v. Tompkins, 304

U.S. 64, 58 S.Ct. 817 (1938); Griffith v. United Airlines, 416 Pa. 1, 203

A.2d 796 (1964). Bishop v. Florida Specialty Paint Co, 389 So.2d 999 (Fila.

1980).

App. B-2

a

Plaintiffs’ claims for breach of contract. In Kirksey, the

Florida Supreme Court reaffirmed the long-standing Florida

rule that “there can be no recovery for mental pain and

anguish unconnected with physical injury in an action

arising out of the negligent breach of a contract whereby

simple negligence is involved.” Jd. at 189. Kirksey has been

interpreted to mean that there can be no recovery for mental

distress caused by a breach of contract in the absence of an

independent willful tort. Crenshaw v. Sarasota County

Public Hospital Board, 10 F.L.W. 880, 881 (Fla. 2d DCA

April 3, 1985); Gellert v. Eastern Airlines, Inc., 370 So.2d

802 (Fla. 3d DCA 1979), cert. denied, 381 So. 29 766 (Fla.

1980); Ford v. Royal’s, Inc., 537 F.Supp. 1173, 1175 (S.D.Fla.

1982).

Consequently, in the instant suit, the sufficiency of

Plaintiffs’ allegations under Counts II and III, the tort

counts, is determinative of the viability of Plaintiffs’ cause of

action in contract. Because this Court concludes, as

discussed below, that the Complaints fail to adequately

allege an independent willful tort, there can be no recovery

under Count I for mental anguish arising out of a breach of

contract.

COUNT II—EASTERN’S NEGLIGENCE

Count II seeks recovery for simple negligence. Under

Florida law “there is no cause of action for psychological

trauma alone when resulting from simple negligence.”

Brown v. Cadillac Motor Car Division, 10 F.L.W. 156 (Fla.

March 8, 1985). See also Champion v. Gray, 10 F.L.W. 164

(Fla. March 8, 1985). Recovery for emotional distress caused

by simple negligence, as alleged in Count II, is therefore

precluded absent allegations of discernible and

demonstrable physical injury. Brown, 10 F.L.W. at 156

(holding that, in cases where a person suffers no physical

injuries in an accident the “psychological trauma must cause

a demonstrable physical injury such as death, paralysis,

App. B-3

muscular impairment, or similar objectively discernible

physical impairment before a cause of action may exist’’).

Plaintiffs argue that Brown and Champion are not

controlling because this suit involves emotional distress

caused by fear for one’s own safety, and not distress caused

to a bystander out of fear for another’s safety. While it is

true that “personal” and “bystander” distress constitute two

distinct emotional circumstances, see Champion v. Gray, 10

F.L.W. 164, 165 (Fla. March 8, 1985), recognition of this

distinction offers no relief to the Plaintiffs in the case sub

judice.

In Brown and Champion the impact rule was modified

to allow recovery for damages flowing from discernible

physical injury caused by psychic trauma resulting from

negligent injury to another. If, as Plaintiffs argue, these

“bystander” cases leave undisturbed prior Florida law

regarding recovery for emotional distress caused by fear for

one’s own safety, then Plaintiffs’ claim for negligence must

fail, for the “impact rule” would bar recovery. Alternatively,

if this Court were to fashion a “new” rule, regarding recovery

for mental distress caused by fear for one’s own safety, as

opposed to fear for another’s safety, it would nonetheless

decline to allow recovery for psychic trauma alone. Cf.

Champion, 10 F.L.W. at 165 (“the public policy of this state

is to compensate for physical injuries . . . we are willing to

modify the impact rule, but are unwilling to expand it to

purely subjective and speculative damages for psychic

trauma’’).

Absent allegations of impact and/or direct physical

contact resulting from Defendant’s alleged negligence, this

Court concludes that there can be no recovery for emotional

distress caused by simple negligence, unless Plaintiffs can

App. B-4

establish discernible physical consequences resulting from

the distress.’

COUNT III—EASTERN’S ENTIRE WANT OF CARE

In Kirksey v. Jernigan, 45 So.2d 188, 189 (Fla. 1950),

the Florida Supreme Court stated:

We do not feel constrained to extend [the rule

barring recovery for mental pain and anguish

unconnected with physical injury] to cases founded

purely in tort, where the wrongful act is such as to

reasonably imply malice, or where, from the entire

want of care of attention to duty, or great

indifference to the persons, property, or rights of

others, such malice will be imputed as would justify

the assessment of exemplary or punitive damages.

In the previously-cited case of Brown v. Cadillac Motor Car

Division, 10 F.L.W. 164 (Fla. March 8, 1985), a negligence

case, the Florida Supreme Court noted that its “ruling does

not disturb any prior decisions allowing [damages for

psychological trauma] in intentional tort cases.” Brown, 10

F.L.W. at 164 n.*. Plaintiffs, therefore, argue that Count III,

entitled “Entire Want of Care”, states a cause of action

under Kirksey. Defendant counters that Kirksey did not

establish an independent cause of action for “entire want of

care.” Upon review of the relevant case law, this Court

concludes, as Defendant contends, that Kirksey did not

establish an independent cause of action in tort.

When Kirksey was decided, Florida had not yet

recognized an independent cause of action for intentional

infliction of emotional distress. Generally, recovery for

*This Court concludes, consistent with the Florida Supreme Court’s

ruling in Kirksey, that simple negligence, even if it did exist, could not

serve as the basis for recovery under Count I for emotional distress arising

out of a breach of contract. Kirksey v. Jernigan, 45 So.2d 188, 189 (Fla.

1950). See also Crenshaw v. Sarasota County Public Hospital Board, 10

F.L.W. 880 (Fla. 2d DCA April 13, 1985).

App. B-5

emotional distress alone was barred. In Kirksey, however,

the Florida Supreme Court recognized for the first time, not

a new tort, but, that damages for emotional distress alone

could be recovered if the defendant was guilty of another

recognized intentional tort.’ Later Florida Supreme Court

opinions support this interpretation of Kirksey. See e.g.,

Slocum v. Food Fair Stores of Florida, 100 So.2d 396 (Fla.

1958). In Slocum, the Supreme Court of Florida stated that

the Kirksey decision “would apparently allow recovery for

mental suffering, even absent physical consequences,

inflicted in the course of other intentional or malicious

torts. . . .” Id. at 395 (emphasis added).

This Court concludes that Count III can withstand a

motion to dismiss for failure to state a cause of action only if

facts are alleged which, assuming their truth, would put the

Defendant on notice of an independently recognized

intentional tort.

In Metropolitan Life Insurance Company v. McCarson,

10 F.L.W. 154 (Fla. March 7, 1985), the Florida Supreme

Court recognized for the first time the tort of intentional

infliction of emotional distress. Section 46 of the

Restatement (Second) of Torts (1965) has been adopted in

Florida as the appropriate definition of the tort. Jd. Section

46 defines the tort of intentional infliction of mental distress

as follows:

§ 46. Outrageous Conduct Causing Severe

Emotional Distress

. . . One who by extreme and outrageous conduct

intentionaly or recklessly causes severe emotional

distress to another is subject to liability for such

"In Kirksey, the court permitted damages for mental pain and

anguish, finding that the defendant was guilty of the separate tortious act

of “tortious interference with rights involving dead humen bodies... .”

Kirksey v. Jernigan, 45 So.2d at 189.

App. B-6

emotional distress, and if bodily harm to the other

results from it, for such bodily harm.

Restatement (Second) of Torts, § 46 (1965). To state a cause

of action under this definition, it is necessary that Plaintiffs

allege conduct “so outrageous in character, and so extreme

in degree, as to go beyond all possible bounds of decency.”

Metropolitan Life Insurance Co., 10 F.L.W. at 155.

“It is for the court to determine, in the first instance,

whether the defendant’s conduct may reasonably be

regarded as so extreme and outrageous as to permit

recovery.” Restatement (Second) of Torts, § 46, comment h

(1965). In the instant suit, Count III realleges the previous

counts for breach of contract and negligence and alleges that

EASTERN acted with an “entire want of care” or that the

subject incident was caused by the “outrageous and willful

misconduct” of EASTERN. The facts alleged in support of

these claims include EASTERN’s alleged failure to properly

inspect, maintain, and operate ite aircraft. More

particularly, it is alleged that EASTERN’s records reveal at

least one dozen prior instances of engine failure due to

missing “O-rings”, yet, EASTERN failed to cure the

problem.

This last allegation is, perhaps, the Plaintiffs’ strongest

attempt to allege some type of scienter on the part of

EASTERN. The Court finds, however, that the allegations

contained in the Complaints, assuming their truth, do not

support the contention that EASTERN AIRLINES acted

“intentionally or recklessly” as requried to state a cause of

action for intentional infliction of emotional distress. There

are no facts alleged to support the claim that EASTERN is

guilty of “outrageous and willful misconduct.”

It has not been enough that the defendant has

acted with an intent which is tortious or even

criminal, or that he has intended to inflict

emotional distress, or even that his conduct has

App. B-7

been characterized by “malice,” or a degree of

aggravation which would entitle the plaintiff to

punitive damages for another tort. Liability has

been found only where the conduct has been so

outrageous in character, and eo extreme in degree,

as to go beyond all possible bounds of decency, and

to be regarded as atrocious, and utterly intolerable

in a civilized community. Generally, the case is one

in which the recitation of the facts to an average

member of the community would arouse his

resentment against the actor, and lead him to

exclaim, “Outrageous!”

Restatement (Second) of Torts, § 46, Comment d (1965)

(cited in Metropolitan Life Insurance Company ov.

McCarson, 10 F.L.W. 154, 155 (Fla. March 7, 1985).

This Court concludes that Plaintiffs have failed to state

a cause of action under Count III, the intentional tort count.

COUNT IV—WARSAW CLAIM

Article 17 of the Warsaw Convention,‘ which establishes

the liability of international air carriers for harm to

passengers, provides as follows:

» The carrier shall be liable for damage sustained in

the event of the death or wounding of a passenger

or any other bodily injury suffered by a passenger,

if the accident which caused the damage so

sustained took place on board the aircraft or in the

course of any of the operations of embarking or

disembarking.

In Air France v. Saks, _ U.S. __, 105 S.Ct. 1338

(1985), the Supreme Court held that liability under Article

17 of the Warsaw Convention arises “only if a passenger's

‘Convention for the Unification of Certain Rules Relating to

International Transportation by Air, Oct. 12, 1979, 49 Stat. 3000, T.S. No.

876 (1934), note following 49 U.S.C. App. §1502.

_——s

App. B-8

injury is caused by an unexpected or unusual event or

happening that is external to the passenger.” 105 S.Ct. at

1345.°

The Defendant does not contend that the engine failure

and subsequent preparations for ditching of the aircraft did

not constitute an accident within the meaning of Articie 17.

Clearly, those events were not the normal and expected

operations of the aircraft. See, e.g. Weintraub v. Capital

International Airways, Inc., 16 CCH Av. Cas. 18,058

(N.Y.Sup.Ct., let Dept. 1981) (testimony that “sudden dive”

led to pressure change causing plaintiffs hearing loss

indicates injury was caused by an “accident”), cited in Air

France v. Saks, 105 S.Ct. at 1345-46. Rather, the Defendant

objects to application of the Warsaw Convention because,

assuming the existence of an accident, the Plaintiffs have

not alleged injuries which are cognizable under Article 17.

The operative language of Article 17 provides recovery

for damages “sustained in the event of the death or

wounding of a passenger ot any other bodily injury suffered

by a passenger.” Defendant contends that this language

refers only to physical injuries. Plaintiffs reepond that no

such limitation is implied.

Among the cases relied on by Plaintiffs is Krystal v.

British Overseas Airways Corp., 403 F.Supp. 1322 (C.D.Cal.

1975). In Krystal, airline passengers brought suit against the

airline under the Watsaw Convention for physical and

psychological injuries incurred when an airplane was

hijacked. Jd. One of the plaintiff's demands for recovery -vas

‘When injury indisputably results from the passenger's own internal

reaction to the usual, normal, and expected operation of the aircraft, the

injury has not been caused by an “accident” within the meaning of Article

17 of the Warsaw Convention. Air France v. Saks, US. —, 105

S.Ct. at 1346. Thus, in Saks, the Court held that the plaintiff's hearing

loss, which was caused by the normal operation of the aircraft's

pressurization system, was not compensable under the Warsaw

Convention. /d.

App. B-9

based solely on mental distress, which included fright,

anxiety, stress, loss of sleep, and fear. Jd. at 1322-23. The

court ruled that mental injuries, standing alone, are

compensable under the Warsaw Convention. Jd. at 1324. In

reaching this conclusion, the court quoted extensively from

Husserl v. Swiss Air Transport Co., 388 F.Supp.1238

(S.D.N.Y 1975), reasoning that “[t]o effect the treaty’s

avowed purpose, the types of injuries enumerated should be

construed expansively to encompass as many types of injury

as are colorably within the ambit of the enumerated types.

Mental and psychosomatic injuries are colorably within the

ambit and are, therefore, comprehended by Article 17.” Jd.

at 1323-24 (quoting Husserl, 388 F.Supp. at 1250).

Indisputably, that portion of the Krystal decision which

concludes that a hijacking is an accident within the meaning

of Article 17, see Krystal, 403 F.Supp. at 1323, remains valid

in light of Saks. In fact, Krystal is cited with approval by the

Supreme Court in Saks for the proposition that the

definition of “accident” under Article 17 should be flexibly

applied. Air France v. Saks, 105 S.Ct. at 1345. Whether the

phrase “bodily injury” should, similarly, be given an

expansive construction was not addressed by the Supreme

Court. However, the Court did provide some guidance on

how this issue is to be resolved.

In Saks, the Supreme Court set forth an approach to be

utilized in determining the meaning of terms contained in

the Warsaw Convention. Jd. at 1342. Upon application of

this approach, this Court concludes, as discussed below, that

mental anguish, alone, is not encompassed within the

meaning of “bodily injury” under the Warsaw Convention.

French was the sole official language of the Warsaw

Conventior.. Accordingly, in Block v. Compagnie Nationale

Air France, 386 F.2d 323 (5th Cir. 1967), cert. denied, 392

U.S. 905, 88 S.Ct. 2053 (1968), the Fifth Circuit held that the

binding meaning of the terms of the Warsaw Convention is

App. B-10

the French legal meaning of those terms.’ The Supreme

Court in Saks reaffirmed this method of analysis. Air France

v. Saks, 105 S.Ct. at 1342 (citing with approval Block). Thus,

doubt is cast upon Krystal, and other cases following the

district court decision in Husserl, since the Husserl court

expressly declined to view as binding the French legal

meaning or interpretation of the treaty. Husserl v. Swiss Air

Transportation Company, Ltd., 388 F.Supp. at 1249.’

It is this Court’s responsibilty to give the specific words

of the Warsaw Convention a meaning consistent with the

shared expectations of the signatories of the treaty. Air

France v. Saks, 105S.Ct. at 134. Thus, as the Supreme Court

has instructed, “[wje look to French legal meaning for

guidance as to these expectations. . . .” Jd.

The French text of the relevant part of Article 17,

relating to injury, reads: “Le transporteur est responsable du

dommage survenu en cas de mort, de blessure ou de toute

autre lésion corporelle subie par un voyageur. . . .” Quoted

in Air France v. Saks, 105 S.Ct. at 1338 n.2 (emphasis

added).

The official American translation of the above-quoted

portion of Article 17 reads: “The carrier shall be liable for

damage sustained in the event of the death or wounding of a

passenger or any other bodily injury suffered by a

passenger. . . .” 49 Stat. 3000 (emphasis added).

‘In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)

(en banc), the Eleventh Circuit adopted as binding precedent al! decisions

of the former Fifth Circuit handed down prior to the close of business on

September 30, 1981.

"Judge Tyler, speaking for the court in Husserl, stated: “It is true t

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