Respondents Brief — Eastern Airlines, Inc. v. Floyd

TABLE OF CONTENTS

“ee eeeeeeeneeeeeeeeeeeeeeeeeeeeee eee ee

THE COURT OF APPEALS CORRECTLY HELD

THAT ARTICLE 17 OF THE WARSAW CONVEN-

TION PROVIDES A REMEDY FOR PSYCHIC

INJURY AND EMOTIONAL DISTRESS UNAC-

COMPANIED BY PHYSICAL INJURY, WHEN

CAUSED BY AN ACCIDENT IN INTERNA-

TIONAL AIR TRANSPORTATION

eee „ „ „ „ „ „ „ „„ „„

THE SECOND QUESTION PRESENTED IN THE

ARGUMENT SECTION OF THE PETITIONER'S

BRIEF IS NOT PROPERLY BEFORE THE COURT.

ON THE MERITS, THE WARSAW CONVENTION

DOES NOT ENTIRELY PREEMPT THE FIELD; IT

PREEMPTS LOCAL LAW REMEDIES ONLY TO

THE EXTENT THAT THEY ARE INCONSISTENT

„ „ „% „% „„ „„ „„ „ „ „ „ „ ee © &

CONCLUSION ....

TABLE OF AUTHORITIES

Air France v. Saks, 470 US. 392 (ls

Aveo Corp. b Machinists, 390 U.S. 557 (1968)......... 26

Caterpillar Inc. b Williams, 482 U.S. 386 (1987)... 26. 31

Chan v. Korean Air Lines, Lid. 490 U.S. 108

Ct. 1676, 104 L. dad 113 (1989) .............. 12, 39

v. Trans World Airlines, Inc., 528 Fd 31 Qnd

ir. 1975), cert. denied, 429 US. 890 (1976) ........ 18

Eastern Airlines, Inc. v. King, 557 So.2d 574 (Fla.

.. ccccccccccccccceccoccccccesssesceseseceeses 20

Finley v United States, 490 U.S. __, 109 S. Ct. 2003,

104 L. dd S93 doo 3

F v. Eastern Airlines, Inc., 872 F.2d 1462 (lind

X KT 9. 19, 20, 25, 27

Franchise Tax Board v. Laborers Vacation Trust, 463

III AA 26

Gully v. First National Bank, 299 US. 109 (1936) ..... 26

Halmos d Pan American World Airways, Inc.. 727

F.Supp. 122 SOON WS ... ©... ccc nn nnnnnes 28

Husserl v. Swiss Air Transport Co. Lid., 388 F Supp.

LI 15

in Re Hijack Pan American World Ai Inc.

Aircraft, ete. FSupp. 17 (S.D.N_Y. 1990) ....... 28

Irvine u California, 347 U.S. 128 (1954) .............. 19

iii

TABLE OF AUTHORITIES - Continued

Page

Oklahoma Tax Commission v. Graham, 489 U.S. 838

re eee eee 26

Pan American Petroleum Corp. v. Superior Court, 366

re esse eee ee 26

= -~ \ jeechnedemdeeeteles 737 GS..

eee eee , 8, 20, 26, 28, 39

OrHer AUTHORITIES

Frank Borman & Robert J. Serl Countdown, An

Aut » 409-12 illiam Morrow,

r cen Ä eee 3

Minutes, Second International Conference on Private

Aeronautical Law, Oct. 4-12, 1929 32, 35, 37, 38

Prosser & Keeton, The Law of Torts, § 54 (Sth Ed.

MEME bees eee eeeeeeee 12, 13

Restatement (Second) of Torts, § 46 (1965) 12, 13

Restatement (Second) of Torts, § 47, Comment b

eee / eee eee ee 12, 13

*

Restatement (Second) of Torts, § 436A (1965) 12

Restatement (Second) of Torts, § 905 (1965)............ 12

eee eee dee eee ee 19

e . eee eee 19

No. 89-1598

*

In The

Supreme Court of the United States

ö October Term, 1990

*

EASTERN AIRLINES, INC.,

Petitioner,

V.

ROSE MARIE FLOYD and

TERRY FLOYD, et al.,

Respondents.

5

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

+

BRIEF FOR THE RESPONDENTS

"=

STATEMENT OF THE CASE

Eastern’s statement of the case is accurate. Unfor-

tunately, its subsequent argument — which asserts that the

Eleventh Circuit’s opinion “has created an anomalous

cause of action which opens wide the door to a flood of

fictitious or frivolous litigation” — is hyperbolic in the

extreme (Petitioner’s brief, p. 34). The opinion does no

such thing, and we deem it prudent to emphasize an

U

aspect of the case briefly to ensure that the Court is not

misled by the petitioner’s rhetorical excesses.

The flight in question departed Miami Internationa!

Airport on May 5, 1983, bound for Nassau, in the

Bahamas. En route to Nassau, one of the airplane’s three

jet engines lost oil pressure, and it was shut down by the

flight crew. The airplane was turned around to return to

Miami. Shortly thereafter, oil pressure was lost on the

second and third engines, and those engines failed. With-

out power, the airplane began losing altitude rapidly, and

the passengers were told that the airplane would be

ditched in the Atlantic Ocean. Understandably, the

engine failures and the announcement of the impending

crash landing caused a considerable amount of mental

distress among the passengers. Fortunately, after an

extended period of descending flight without power, the

flight crew was able to restart the engine which had

initially been shut down, and land the airplane safely at

Miami International Airport before that third engine

failed.

Following the incident, it was discovered that, during

routine maintenance on each engine prior to flight, East-

ern's maintenance personnel had failed to install a

required “O-ring” to seal against oil leaks. The result was

that oil in the engines had been pumped overboard

through the gaps left by the omitted O-rings. It was also

discovered that Eastern had experienced no less than a

dozen prior engine failures for the identical reason, but

that Eastern had done nothing to educate its maintenance

personnel or otherwise correct this oft-repeated life-

threatening omission. The incident was clearly an “acci-

dent” within the meaning of that term in Article 17 of the

3

Warsaw Convention, and the passengers’ mental distress

was both genuine and severe. At least two of the pas-

sengers suffered physical injury from their mental dis-

tress.

All of these things were alleged in the several

amended complaints (see Joint Appendix, 3-9) - and

because Eastern obtained a “judgment on the pleadings”,

all of these things must be accepted as, true at this

point in the proceedings.' There is therefore no basis

1 It is also worth noting that the allegations are true. In a

recent autobiography, Frank Borman, Eastern’s president at the

time of the incident in suit, publicly conceded the airline's

responsibility for the incident:

. . « | hadn’t been satisfied with our maintenance

and after a widely publicized incident

involving one of our L-1011s - a near-ditching in the

Atlantic - I decided changes had to be made. The Tri

Star had lost power in all three engines, a multiple

malfunction traced to faulty installation of oil rings.

There had been sloppy work by inadequately super-

vised mechanics.

| wasn’t suprised that Eastern was targeted for an

investigation [by the FAA]. The near-ditching inci-

dent, plus our known financial difficulties, had made

us suspect. Yet, | was confident we had cleaned up

our act after that L-1011 embarrassment. Some

thought we should have fired the mechanics respon-

sible, but I felt management was partially at fault

we had changed certain engine maintenance pro-

cedures without making sure the word had filtered

down to the mechanics directly involved.

Frank Borman with Robert J. Serling, Countdown, An Auto.

biography, pp. 409-12 (William Morrow, New York, 1988). —

4

whatsoever for Eastern’s suggestion that the plaintiffs’

mental injuries are “fictitious or frivolous”, or otherwise

undeserving of compensation nor is there any basis for

the suggestion that recognizing a cause of action for the

redress of those injuries would be “anomalous”.

*

SUMMARY OF ARGUMENT

I. In the interest of brevity, and because we do not

believe we can improve on the court of appeals’ analysis

of the issue in any significant way, we simply adopt

Section III of the court of appeals’ opinion as our primary

argument here. We have three brief additional observa-

tions to make. First we note that Eastern’s proposed

construction of Article 17 necessarily concedes thzi the

phrase “lésion corporelle” does authorize a recovery of

damages for mental distress in at least some cases. Given

that concession, Eastern cannot ask the Court to construe

the phrase to exclude all damages for mental distress, and

it has not. It has asked the Court instead to read the

phrase to include damages for mental distress if accom-

panied by physical impact or injury, and to exclude dam-

ages for mental distress if unaccompanied by physica!

impact or injury. In our judgment, there are not enough

words in the phrase “lésion corporelle” to spell out such

a complex distinction. The phrase either includes or

excludes such a recovery, but it clearly cannot do both.

The only logical construction of the phrase which accords

with Eastern's concession is that the phrase allows the

recovery of damages for mental distress.

Second, we think Eastern has badly overstated the

purpose of the “impact rule” and the consequences which

will follow from the court of appeals’ refusal to read its

complexities into the phrase “lésion corporelle”. Dam-

ages for psychic injury and mental distress are normally

recoverable in most tort actions; the “impact rule” is

simply an artificial device to sort the significant from the

trivial - to prevent, as a matter of judicial policy, inunda-

tion of the judiciary with trifling claims. Because this is

its purpose, the “impact rule” has been relaxed in

numerous types of cases, and the facts of the instant case

clearly fall into these exceptional categories, rather than

into the category of the trivial. In addition, the type of

line-drawing represented by the “impact rule” is unnec-

essary in this case, because the significant has already

been sorted from the trivial by the Warsaw Convention

itself. Before there can be a recovery under Article 17,

there must have been an “accident”, and we take it to be

self-evident that an aircraft “accident” is likely to cause

genuine and severe mental distress, and that the term

itself therefore excludes the type of trivial claims which

the “impact rule” is designed to exclude. In short,

because the significant has already been sorted from the

“trivial by Article 17 itself, there is no need for this Court

to impose the common laws “impact rule” upon the

Warsaw Convention to eliminate trifling claims.

Third, even if the phrase “lésion corporelle” means

no more than “bodily injury”, we think the phrase

“bodily injury” includes both mental and physical injury

(as Eastern has conceded it does, at least where the

requisite physical imp ct exists). After all, a mental injury

is an injury to the brain, and the brain is certainly an

—

organ of the body. The current view of the human life

form is that anxiety, fear, mental anguish, psychic trauma

and the like are physiological reactions to external stimuli

- i. e., that a “mental injury” is, in fact, a “bodily injury”.

A treaty, like a Constitution, is a flexible instrument for-

mulated in broad terms to accommodate the future and

just as the Warsaw Convention can be read flexibly

enough to accommodate aviation’s growth from ragwing

bi-planes to jumbo jets in the 60 years since its adoption,

it can be read flexibly enough to accommodate this mod-

ern understanding of the nature of mental injury.

II. In the concluding section of its argument, East-

ern asks the Court to decide an additional question

whether the Warsaw Convention so entirely preempts the

field that it must be considered an “exclusive” remedy, or

whether it preempts local law remedies only to the extent

that they are inconsistent with it. We do not believe this

question is properly before the Court. The question was

not one of the “Questions Presented” in Eastern's petition

for writ of certiorari. The question was also expressly left

open below, so it does not fall within the “plain error”

exception to the rule. The advisory opinion which Eastern

seeks also asks the Court to resolve a question which is

entirely moot at this point, since the Florida Supreme

Court has held that the passengers of Flight 855 have no

state law causes of action. Given this holding, the »>re

emption issue initially lurking in these cases no longer

exists — and there is therefore »o controversy over that

point which needs to be reso'ved by this Court. For these

three reasons we do not believe the second question

smuggled into Eastern’s argument is properly before the

Court.

The reason why Eastern has requested an advisory

opinion on the question is that it hopes to overturn a

decision of the Chief Judge of the Southern District of

Florida, which currently limits the removal jurisdiction of

that court in actions arising out of accidents in interna-

tional air transportation: Rhymes v. Arrow Air, Inc., 636 F.

Supp. 737 (S.D. Fla. 1986). This decision holds, in essence,

that the Warsaw Convention does not entirely preempt

the field, but only preempts local law to the extent that it

is inconsistent with it; that a plaintiff may therefore elect

to frame his complaint in terms of local law, to which the

preemptive “conditions and limits” of the Warsaw Con-

vention can be pled in defense; and that, because of the

settled “well-pleaded complaint rule”, the availability of

the federal defense will not justify removal of the action

to federal court.

If, as Rhymes holds, the Warsaw Convention does not

entirely preempt the field, but only preempts those

aspects of local law which are inconsistent with it, then

the settled “well-pleaded complaint rule” simply

required the conclusion reached in Rhymes. This Court

has created only one very limiied exception (in only two

very specific contexts) to that rule the “complete pre-

emption” doctrine, which holds that if the preemptive

force of a federal statute is truly “extraordinary”, the

statute converts an ordinary state common law complaint

into one stating a federal claim for purposes of the “well-

pleaded complaint rule”. Eastern’s contention that the

Warsaw Convention is “exclusive” is an attempt to fit the

Convention within this infrequently applied exception to

the general rule. In our judgment, neither the express

language of the Convention nor the plain import of its

legislative history can ever justify a conclusion that the

Convention was intended to “entirely preempt” the field.

In the first place, it is clear from the face of the

Convention itself that its preemptive effect can only be

partial, because the Convention only partially addresses

the numerous issues which would necessarily arise in any

action to recover damages for death or injury in interna-

tional air transportation. We will examine the provisions

of the Convention which point to this conclusion in some

detail in the argument which follows. We will also exam-

ine the Minutes of the Convention in some detail, because

it is both evident from the Minutes, and sometimes

express in them, that the intention of the drafters was not

to write a document which entirely preempted the field,

but to write a document which regulated only certain

areas of international air law, leaving all unregulated

areas to local law. In the process, we will demonstrate

that the Warsaw Convention undeniably stops well short

of the “complete preemption” theory upon which East-

ern’s quarrel with Rhymes squarely depends, and we

respectfully submit that Rhymes was correctly decided.

+

ARGUMENT

I

THE COURT OF APPEALS CORRECTLY HELD THAT

ARTICLE 17 OF THE WARSAW CONVENTION PRC-

VIDES A REMEDY FOR PSYCHIC INJURY AND EMO-

TIONAL DISTRESS UNACCOMPANIED BY

PHYSICAL INJURY, WHEN CAUSED BY AN ACCI-

DENT IN INTERNATIONAL AIR TRANSPORTATION.

It is evident from the court of appeals’ opinion that

the issue presented here was exhaustively researched,

— —— —.

9

thoughtfully analyzed, and carefully resolved. The opin-

ion also contains its own thorough rebuttal to the several

challenges leveled at it here. We do not believe that we

can improve upon it in any significant way - and to spare

the Court the need to read our argument twice, we sim-

ply adopt Section III of the court of appeals’ opinion as

our primary argument here. See Floyd v. Eastern Airlines,

Inc., 872 F.2d 1462, 1467-80 (11th Cir. 1989). We will

supplement that argument with a brief rebuttal to some

points which Eastern has raised for the first time here,

and we will close with three brief, additional observa-

tions which we believe relevant to consideration of the

issue.

Eastern argues that the phrase “lésion corporelle” is

“clear and unambiguous”. Given the conflict in decisions

which may have provoked the grant of certiorari; the

scholarly disagreement over the meaning of the phrase

(which Eastern has highlighted in its brief); and the fact

that, as the court of appeals observed, “(t]he question

whether Article 17 encompasses recovery for purely men-

tal injuries has confounded courts and commentators for

many years” (Floyd, supra at 1471) — we doubt that the

Court can comfortably declare the phrase “clear and

unambiguous”. Eastern also argues that “international

standards”, rather than French law, were meant to govern

interpretation of the Warsaw Convention. The short

answer to this argument can be found in Air France v.

Saks, 470 U.S. 392, 399 (1985), in which the Court held

that, to determine the meaning of any given term in

Article 17, it “must consider its French legal meaning”.

Eastern also argues that the drafters of the Conven-

tion used the phrase “lésion corporelle” (or “bodily

10

injury”, in the English translation) when discussing Arti-

cle 17, and that the discussion therefore supports its

construction of Article 17. In our judgment, this argument

proves nothing. It is the meaning of the phrase which is in

issue here, and the fact that the drafters used the phrase

itself in discussing the phrase certainly sheds no light on

that question. Eastern also refers the Court to several

secondary authorities for the proposition that the phrase

“lésion corporelle” was not originally intended to include

claims for purely mental injury. However, the most that

these secondary authorities reflect is scholarly disagree-

ment over the intention of the drafters and the meaning

of the ambiguous phrase, and sentiment that the ambi-

guity ought to be resolved in favor of liability for purely

injury (or that Article 17 should be clarified to

make the point certain) - so these authorities add little to

Eastern’s position here.

~

Eastern next argues that the court of appeals should

not have looked to the 1966 Montreal Agreement or the

1971 Guatemala City Protocol as examples of the “subse-

quent conduct of the contracting parties”. It suggests

instead that the more appropriate “subsequent conduct”

is that of the earlier 1951 meeting of the ICAO in Madrid,

at which the ICAO proposed but did not adopt a revision

to Article 17 which would have made the recoverability

of damages for mental injury explicit rather than ambig-

uous. The revisions proposed at the 1951 Madrid confer-

ence appear to have been stillborn, however; and because

the conference amounted to no more than negative action

on interim discussions concerning an ongoing review, the

probative value of the discussions to the question pre-

sented here can hardly be elevated above the subsequent

11

positive conduct of the contracting parties represented by

the Montreal Agreement and the Guatemala City Proto-

col. We therefore believe that the court of appeals prop-

erly gave more weight to the subsequent positive actions

of the contracting parties. The fact also remains that,

because of the conduct of the contracting parties which

resulted in the Montreal agreement, the respondents in

the instant case were provided with a ticket which trans-

lated the phrase “lésion corporelle” into the phrase “per-

sonal injury”. And with that brief rebuttal behind us, we

turn to the three additional observations which we prom-

ised the Court.

First, we note that, by bottoming its suggested con-

struction of Article 17 exclusively upon the artificial line

drawn by the common law’s “impact rule”, Eastern has

necessarily conceded that Article 17 permits recovery of

damages for psychic injury and mental distress if accom-

panied by a physical impact or injury. Eastern has there-

fore conceded that the two-word phrase in issue here,

“lésion corporelle”, does authorize a recovery of damages

for mental distress in at least some cases. Given that

concession, Eastern cannot ask the Court to construe the

phrase to exclude all damages for mental distress, and it

has not. It has asked the Court instead to read the phrase

to include damages for mental distress if accompanied by

physical impact or injury, and to exclude damages for

mental distress if unaccompanied by physical impact or

injury.

In our judgment, there are not enough words in the

phrase “lésion corporelle” to spell out such a complex

distinction. The phrase either includes or excludes such a

recovery, but it clearly cannot do both. Therefore, even if

12

the Court should be unpersuaded by the court of appeals’

reasoning, it ought to be persuaded that the court nev-

ertheless reached the only result which simple logic will

permit. See Chan v. Korean Air Lines, Ltd., 490 U.S. ___, 109

S. Ct. 1676, 104 L. Ed.2d 113, 127 (1989) (Court cannot

“alter, amend, or add to any treaty, by inserting any

clause, whether small or great, important or trivial”, but

must give it a logical interpretation bottomed upon ordi-

nary rules of construction).

Second, we think Eastern has badly overstated the

purpose of the “impact rule” and the consequences which

will follow from the court of appeals’ refusal to read its

complexities into the phrase “lésion corporelle”. The

common law does not deem all claims for psychic injury

and mental distress to be “fictitious or frivolous”, as

Eastern would have the Court believe. In fact, damages

for psychic injury and mental distress are normally recov-

erable in most tort actions — because, as a matter of

human experience, mental injuries are considered every

bit as real and significant (and therefore deserving of

compensation) as physical injuries. See Restatement (Sec-

ond) of Torts, §905 (1965). Cf. Restatement (Second) of Torts,

§47, Comment b (1965). The “impact rule”, to the extent

that it has survived at all in the common law, has a

different purpose altogether: it is primarily an artificial

device to sort the significant from the trivial - to prevent,

as a matter of judicial policy, inundation of the judiciary

with trifling claims. See Restatement (Second) of Torts, §§46,

436A (1965) (and Comments thereto); Prosser & Keeton,

The Law of Torts, §54 (Sth Ed. 1984).

Because this is its purpose, the “impact rule” has

been relaxed in numerous types of cases: where the

13

defendant, because it is a “common carrier”, owed the

highest duty of care to the plaintiffs; where the defen-

dant’s tortious conduct has been of an aggravated nature;

or where the defendant’s tortious conduct has been such

that genuine psychic injury and mental distress is a pre-

dictable consequence of the conduct. See Restatement (Sec-

ond) of Torts, §§46, 47 (1965); Prosser & Keeton, supra, §54.

The facts of the instant case clearly fall into these excep-

tional categories, rather than into the category of the

trivial. As the court of appeals held below (in a ruling not

challenged here), Eastern’s conduct - in allowing these

13th, 14th, and 15th engine failures for the same omitted

“O-ring” — will support a finding of “wilful misconduct”.

Eastern is also a common carrier which owes its pas-

sengers the highest duty of care recognized in the law.

And, of course, it is simply undeniable that the alleged

psychic injuries and mental distress of the passengers of

Flight 855 are more likely to be genuine than to be

feigned. The facts in this case therefore do not commend

the type of artificial line-drawing represented by the

purely pragmatic policy which initially motivated the

common law’s “impact rule”.

There is also no need for the Court to cleave the

phrase “lésion corporelle” into the two complex catego-

ries which Eastern purports to find in it to accomplish

what the “impact rule” is designed to accomplish,

because the significant has already been sorted from the

trivial by the Warsaw Convention itself. Before there can

be a recovery under Article 17, there must have been an

“accident” - defined as “an unexpected or unusual event

or happening that is external to the passenger”, in contra-

distinction to “the passenger’s own internal reaction to

14

the usual, normal, and expected operation of the air-

craft”. Air France v. Saks, 470 U.S. 392, 405, 406 (1985). We

take it to be self-evident that an aircraft “accident” is

likely to cause genuine and severe mental distress, and

that the term itself therefore excludes the type of trivial

claims which the “impact rule” is designed to exclude -

like the rudeness of stewardesses, in-flight turbulence, or

any other trivial, mentally aggravating aspect of interna-

tional air transportation which a passenger should be

prepared to expect and accept.

There is therefore no justification whatsoever for the

following overstated assertion in Eastern’s brief:

The decision below undermines the Conven-

tion’s purposes by exposing air carriers to a

tially unlimited — of frivolous and

unverifiable claims. Conceivably, every hyper-

sensitive individual with a fear of flying could

require an airline to pay on a claim for the

discomfort experienced on a flight beset by

unavoidable turbulence.

The Eleventh Circuit has created an anomalous

cause of action which opens wide the door to a

flood of fictitious or frivolous litigation.

(Petitioner’s brief, p. 34). Given the threshold require-

ment of Article 17 that there can be no recovery of any

damages without an “accident”, this “parade of hor-

ribles” will never occur. In short, because the significant

has already been sorted from the trivial by Article 17

itself (not to mention the fact that even the significant

claims have also been artificially “capped” by an uncon-

scionably low limitation upon damages), there is no need

for this Court to impose the common law’s “impact rule”

upon the Warsaw Convention to eliminate trifling claims.

15

Third, and finally, even if the phrase “lésion corpo-

relle” means no more than “bodily injury”, we think the

phrase “bodily injury” includes both mental and physical

injury (as Eastern has conceded it does, at least where the

requisite physical impact exists). After all, a mental injury

is an injury to the brain, and the brain is certainly an

organ of the body. There was a time in the not so distant

past of human evolution, of course, when the mind and

the body were considered to be separate and distinct

entities. Modern scientific developments have clearly put

that mythic view of our being to rest, however and,

although the precise mechanisms of our thoughts and

feelings remain largely uncharted, there is general scien-

tific agreement that the sophisticated mental processes of

our brain are, in actuality, mere physiological processes

involving electrical charges and chemical reactions. In

short, the current view of the human life form is that

anxiety, fear, mental anguish, psychic trauma and the like

(except where caused by innate physiological abnor-

mality) are physiological reactions to external stimuli -

i. e., that a “mental injury” is, in fact, a “bodily injury”.

Judge Tyler put the point nicely in Husserl v. Swiss

Air Transport Co., Ltd., 388 F. Supp. 1238, 1250 G. D. N. y.

1975), as follows:

.. However, death“, “wounding”, and “bodily

injury” in English or in French can, almost as

easily, all be construed to relate to emotional

and mental injury.

“Bodily injury” is perhaps particularly signifi-

cant in this regard because of the vast strides

which have been taken relatively recently in the

fields of physiology and psychology. It becomes

16

body. Today, Rw commonly Tecoghized that

. , it is com that

mental reactions and — are more

subtle and less well understood 1

phenomena than the ph

and organs and with cal trauma. There-

eh gE pene th Base ph path fan thao

strued to comprehend all personal injuries

which directly and adversely affect the organic

functions of a human being.

Such a construction clearly makes much more contempor-

ary sense than a construction which perpetuates a now

thoroughly discredited view of human physiology, and

we commend it to the Court as an additional justification

for construing the phrase “lésion corporelle” to mean

what Eastern has already acknowledged it to mean on the

ticket it sold the respondents in these cases: “personal

injury” - a broad phrase which clearly subsumes and

includes the genuine mental injuries suffered by the

respondents.

To Eastern’s anticipated reply that the Court’s task is

to determine what the drafters of the Warsaw Convention

meant by the phrase “lésion corporelle” in 1929, we

remind the Court simply that it is not chained to dis-

credited scientific and philosophical understandings of

that era. A treaty, like a Constitution, is a flexible instru-

ment formulated in broad terms to accommodate the

future - and just as the Warsaw Convention can be read

flexibly enough to accommodate aviation’s growth from

ragwing bi-planes to jumbo jets in the 60 years since its

adoption, it can be read flexibly enough to accommodate

the modern understanding of the nature of mental inju-

ries:

tional construction, set forth in his opinion in

Missouri v. Holland, 252 U.S. 416, 433, 40 S. Ct.

382, 383, 64 L. Ed. 641 (1920), applies with equal

force to the task of treaty interpretations:

(WJhen we are dealing with words that also

are a constituent act .. we must realize that

they have called into life a being the devel-

opment of which could not have been fore-

seen completely by the most gifted of its

begetters.

The conduct of ine parties subsequent to rat-

ification of a treaty may, thus, be relevant in

ascertaining the proper construction to accord

the treaty’s various provisions.

It cannot be doubted, therefeore, that the War-

saw Convention now functions to protect the

passenger from the many present-day hazards

of air travel and also spreads the accident cost of

air transportation among all passengers.

We conclude, in sum, that the protection of the

ssenger ranks high among the goals which the

arsaw signatories now look to the Convention

to serve.

gates knew that, in the years to come, civil avia-

foresee. They to Sesign sytem of

, to a a

law Ie Nn

keep these T

hold e Cohinrine te Rramnere’ Benet that

the ever-cha — ld ng Ade

aviation can served within framework

Day v. Trans World Airlines, Inc., 528 F.2d 31, 35-37 (2nd

Cir. 1975) (footnotes omitted), cei. denied, 429 US. 890

(1976). See Air France v. Saks, 470 U.S. 392 (1985) (treaties

are entitled to liberal construction). If this sentiment is

relevant here, and we believe it is, we respectfully submit

that even if the phrase “lésion corporelle” means only

“bodily injury”, as Eastern insists, a mental injury is a

bodily injury - and Article 17 therefore authorizes a

recovery of damage for the genuine injuries undeniably

suffered by the respondents in the unforgivable “acci-

dent” which is the subject of the instant cases.

THE SECOND QUESTION PRESENTED IN THE

ARGUMENT SECTION OF THE PETITIONER’S BRIEF

IS NOT PROPERLY BEFORE THE COURT. ON THE

MERITS, THE WARSAW CONVENTION DOES NOT

ENTIRELY PREEMPT THE FIELD; IT PREEMPTS

LOCAL LAW REMEDIES ONLY TO THE EXTENT

THAT THEY ARE INCONSISTENT WITH IT.

In the concluding section of its argument, Eastern

asks the Court to decide an additional question - whether

the Warsaw Convention so entirely preempts the field

19

that it must be considered an “exclusive” remedy, or

whether it preempts local law remedies only to the extent

that they are inconsistent with it. We do not believe this

question is properly before the Court. In the first place,

the question was not one of “Questions Presented” in

Eastern’s petition for writ of certiorari. Rule 14.1(a) states

that “fo}]nly the questions set forth in the petition, or

fairly included therein, will be considered by the Court”.

Rule 24.1(a) states that “the brief may not raise additional

questions or change the substance of the questions

already presented in [the petition for writ of certiorari]“

See Irvine v. California, 347 U.S. 128, 129 (1954) (“We

disapprove the practice of smuggling additional ques-

tions into a case after we grant certiorari. The issues here

are fixed by the petition... ).

There is a limited exception to this rule, for “plain

error“. That exception is not implicated here, however,

because the question was not even decided below.

Instead, it was expressly left open:

Eastern suggests that we hold that the Conven-

tion provides the exclusive source of a right of

recovery and thus completely preempts state

law causes of action in accidents involving inter-

national air transportation. At this stage of the

case, however, we determine only that the Con-

vention preempts those aspects of plaintiffs’

state law claims which are inconsistent with the

Convention. We decline to late further on

the issue of whether the Warsaw Convention

entirel state law causes of action once

it el . triggered by an accident“

within the meaning of Article 17.

Floyd, supra at 1482. In short, Eastern has impermissibly

asked this Court for an advisory opinion on a point not

20

even ruled upon below - not the correction of a “plain

error”.

The advisory opinion which Eastern seeks also asks

the Court to resolve a question which is entirely moot at

this point. As the court of appeals’ opinion observes,

whether the respondents in these cases have any causes

of action under state law “must await the Supreme Court

of Florida’s decision on the issue” (in the companion case

which was not removed to federal court). Floyd, supra at

1490. Subsequent to the court of appeals’ opinion, the

Florida Supreme Court held that the passengers of Flight

855 had alleged no state law causes of action. See Eastern

Airlines, Inc. v. King, 557 So.2d 574 (Fla. 1990). Given this

holding, the preemption issue initially lurking in these

cases no longer exists and there is therefore no contro-

versy over that point which needs to be resolved by this

Court. For all of these reasons, we do not believe the

second question smuggled into Eastern’s argument is

properly before the Court.

Because the question is not properly before the

Court, we will address its merits as briefly as possible.

Before we reach the merits, however, we should explain

the reason why Eastern (or more accurately, its insurers)

has requested an advisory opinion on the question. The

reason for the request is that Eastern hopes to overturn a

decision of the Chief Judge of the Southern District of

Florida, which currently limits the removal jurisdiction of

that court in actions arising out of accidents in interna-

tional air transportation: Rhymes v. Arrow Air, Inc., 636 F.

Supp. 737 (S.D. Fla. 1986). Judge King’s opinion speaks

nicely for itself on the point placed in issue here:

21

The pro~osition presented by the Defendants in

these cases is that the cause of action created by

the Convention has preempted the application

of state wrongful death statutes for loss occur-

ring during international flights. The Defen-

dants argue that the cause of action created by

the Convention is exclusive and that no other

cause of action for wrongful death will lie. The

Plaintiffs on the other hand argue that the rem-

edy may be exclusive as to limitation on dam-

ages allowed by the Convention but that the

cause of action is not exclusive and may be

based in state law.

A distinction must be drawn between an exclu-

sive remedy and exclusive cause of action. The

courts that have addressed the issue have all

held that the limitations of the convention have

always been the exclusive remedy even when

the cause of action was based on state law. The

amount of recovery is limited by the terms of

the convention. The cause of action on which

the recovery is based is not limited by the con-

vention. Both state law and the convention may

provide a cause of action. Any recovery, no mat-

ter how founded, will be subject to limita-

tions of the convention. Conflicting provisions

of state law will be preempted by the limitations

imposed by the convention.

The language of the convention itself

implies that the cause of action created by the

Convention is not exclusive. The Convention

states that “any action for damages however

founded, can only be brought subject to the con-

ditions and limits set out in this convention.” 49

U.S.C. § 1502 note, Art. 24(1) (emphasis added).

This provision contemplates the application of

the convention limitations to actions founded on

a basis other than that of the convention. The

convention further allows the suit for damages

to be brought in a number of locations.

22

An action for damages must be brought, at

the option of the plaintiff, in the territory of

one of the High Contracting Parties, either

before the court of the domicile of the car-

rier or of his principle [sic] place of busi-

ness, or where he has a place of business

through which the contract has been made,

or before the court at the place of destina-

tion. 49 U.S.C. § 1502 note, Art. 28(1).

This language contemplates allowing the plain-

tiff his choice of forum limited only by the pro-

vision cited above.

The 9 — case law supports the theory that

the Convention is not the exclusive cause of

action for recovery for [sic] damages. Tokio

Marine & Fire Ins. v. McDonnell Douglas Corp.,

617 F.2d 936 (2d Cir. 1980). “The best explana-

tion for the wording of Article 24(1) appears to

be that the delegates did not intend that the

cause of action created by the Convention to be

exclusive. For example in the United States,

state law causes of action may be invoked by

plaintiffs injured during international air trans-

rtation.” In Re Mexico City Aircrash, supra 708

2d 400, at 414, n.25.

Faced with an almost identical procedural back-

ground the Court, when considering the Korean

Airlines tragedy, held a weil pleaded complaint

based solely on a state law cause of action was

not removable to the federal district court under

the convention and remanded. Van Ryn v. Korean

Airlines, et al., 84-6525, slip op. (C.D. Cal. 1985).

There is no question that when a state cause of

action is in conflict with the provisions of the

Convention the conficting provision of the state

action will be preempted by the applicable pro-

visions of the Convention. Boehringer, supra.

23

The application of California law suggested

here necessarily conflicts with the congres-

sional scheme. Neither uniformity or effec-

tive limitation of the airlines liability could

be achieved if the state law doctrines could

be invoked to circumvent the application of

the limitation. Accordingly we hold that the

California law is preempted by the Warsaw

Convention to the extent that California law

would prevent the application of the con-

ventions limitations on liability.

In Re Aircrash in Bali Indonesia, 684 F.2d 1301, at

1308 (9th Cir. 1982). The Convention being a

treaty of the United States is thus afforded

supremacy over conflicting state law. Missouri v.

Holland, 252 U.S. 416, 40 S. Ct. 382, 64 L. Ed. 641

(1920).

A review of the cases leads to the conclusion

that the Plaintiff may choose to state his cause of

action solely on a state law theory and bring the

action in state court subject to the limitations of

the Convention. If the state law conflicts with

the Convention, the Convention will preempt

the portion of the state remedy that is in con-

flict. Thus there are four types of actions avail-

able to the Plaintiff; firstly if diversity is present

and the complaint meets the other requirements

the Plaintiff may bring his complaint in federal

court under 28 USC. § 1332. If the Plaintiff so

chooses he may bring a cause of action exclu-

sively under the Warsaw Convention and if he

wishes he might attach a state cause of action.

This t of case could be brought directly in

federal court under 28 U.S.C. § 1331 or in the

appropriate state court. Of course, if this type of

action was brought in state court it could be

properly removed to federal court.

The Plaintiffs in the instant cases have chosen to

state their cause of action exclusively under a

24

state wrongful death statute and have brought

the current litigation in state court. The Defen-

dants have petitioned for removal of these

causes and have filed answers that plead the

limitation provisions of the Warsaw Convention

as a defense. The mere pleading of a federal

statute or treaty as a defense will not be enou

to invoke federal jurisdiction through remova if

a federal cause of action does not a on the

face of the well pleaded complaint. Franchise Tax

Board v. Construction Laborers Vacation Trust, 463

U.S. 1, 103 S. Ct. 2841, 77 L. Ed.2d 420 (1983);

Hunter v. United Van Lines, 746 F.2d 635 (9th Cir.

1984); Salveson v. Western States Bankcard Associa-

tion, 731 F.2d 1423 (9th Cir. 1984). “When, as in

the case before us, plaintiff presents a state-law

claim and defendant counters by arguing that

federal law preempts the state law on which

Plaintiff relies, the federal claim a by way

of defense. Under the well ed complaint

rule federal jurisdiction over such a claim is

lacking.” Hunter, supra 746 F.2d 635, at 639-640.

If the federal courts were to allow removal

whenever a federal defense is raised to a state

cause of action, the dockets of the federal bench

would become inundated with a flood of state

litigation.

There is no question that if the Plaintiff had

chosen to he could have plead [sic] a federal

cause of action. The Plaintiff made the affirma-

tive choice not to so plead and courts are reluc-

tant to disturb the Plaintiff’s chosen forum. The

courts have extensively addressed this proposi-

tion in the area of forum non-conveniens.

Ulnless the balance is strongly in favor of the

— the plaintiff's 7 * of forum should

ra * il Corporation v. Gilb-

ert, 330 U.S. 501 at or ars. Ct. 839, at 843, 91 L.

Ed. 1055 (1947). “[T]he plaintiff’s choice of

forum is to be respected unless the balance of

25

both public and private interests strongly justi-

fies a transfer.” Manu International S. A. v. Avon

Products, Inc., 641 F.2d 62, at 65, (2d Cir. 1981).

See also, Liaw Su Teng v. Shipping Corp.,

743 F.2d 1140 (5th Cir. 1984); ter v. Hall,

352 F. Supp. 806 (S.D.Tex.1972). Pleading a

defense er the Warsaw Convention as the

Defendants have done will not lay proper

basis for removal to this Court. Accordingly

therefore:

It is ORDERED and ADJUDGED that the several

motions for remand be and they are hereby

GRANTED. The cases removed to this Court

from the state court which based their cause of

action exclusively on a state cause of action be

and hereby are REMANDED to the Circuit

Court for the Eleventh Judicial Circuit in and for

Dade County, Florida.

636 F. Supp. at 740-42.2

2 The court of appeals’ opinion contains a lengthy footnote

purporting to collect two divergent lines of authority on the

scope of the preemption effected by the Warsaw Convention.

Floyd, supra at 1482 n. 33. An examination of the decisions

collected in the footnote will reveal that the two lines of

authority involve mostly semantic differences rather than sub-

stantive differences. Most of the decisions cited in support of

the “complete preemption” theory advanced by Eastern here

do not really grapple with the issue. Most of them are like

Floyd, in which it was not really necessary to decide the issue,

because either preemption theory produced the same result.

And most of them simply conclude that, because of a preemp-

tion effected by the Warsaw Convention on the facts of the

case, the Convention was “exclusive” - but that is really only a

different way of saying what Rhymes says, that the Convention

preempts all inconsistent provisions of local law.

(Continued on following page)

26

If, as Rhymes holds, the Warsaw Convention does not

entirely preempt the field, but only preempts those

aspects of local law which are inconsistent with it, then

the settled “well-pleaded complaint rule” simply

required the conclusion reached in Rhymes. See, e. g.,

Oklahoma Tax Commission v. Graham, 489 U.S. 838 (1989);

Caterpillar Inc. v. Williams, 482 U.S. 386 (1987); Franchise

Tax Board v. Laborers Vacation Trust, 463 U.S. 1 (1983); Pan

American Petroleum Corp. v. Superior Court, 366 US. 656

(1961); Gully v. First National Bank, 299 U.S. 109 (1936).

To this general rule, this Court has created only one

very limited exception (in only two very specific con-

texts) — the “complete preemption” doctrine, which holds

that if the preemptive force of a federal statute is truly

“extraordinary”, the statute “converts an ordinary state

common law complaint into one stating a federal claim

for purposes of the well-pleaded complaint rule”. Cater-

pillar Inc. v. Williams, supra at 393. This Court has applied

that exception in only two narrow circumstances. See

Avco Corp. v. Machinists, 390 U.S. 557 (1968) (state law

does not exist as an independent source of private rights

to enforce collective bargaining contracts); Metropolitan

Life Insurance Co. v. Taylor, 481 U.S. 58 (1987) (state con-

tract and tort claims completely preempted by Employee

(Continued from previous page)

Because both approaches ordinarily produce the same

result, the distinction between them is a distinction without a

difference in most cases. As a practical matter, therefore, the

distinction becomes important only in cases like Rhymes, where

the distinction may be determinative of the removal jurisdic-

tion of the federal courts. It is for that reason that we have

elected to argue the issue in the context presented in Rhymes.

— —

27

Retirement Income Security Act). Eastern's contention

that the Warsaw Convention is exclusive“ is an attempt

to fit the Convention within this infrequently applied

exception to the general rule. In our judgment, neither

the express language of the Convention nor the plain

import of its legislative history supports the contention.

First, it is clear from the face of the Convention itself

that its preemptive effect can only be partial, because the

Convention only partially addresses the numerous issues

which would necessarily arise in any action to recover

damages for death or injury in international air trans-

poration. For example, the Convention contains no provi-

sions governing who the plaintiff shall be, for which

beneficiaries of a decedent’s estate the plaintiff can

recover, or what the elements of damage are. All of that is

expressly left to local law, subject to the handful of “con-

ditions and limits” otherwise imposed upon local law by

the Convention:

Article 24

(1) In the cases covered by Articles 18 and 19

[damage to —— and * in hee om ae gos

any action owever founded, can

only be brought subject to to * conditions and limits

set out in this convention.

(2) In the cases or by Article 17 [death and

personal injury] the provisions of the preceding

paragraph shall also apply, without prejudice to the

questions as to who are the persons who have the

right to bring suit, and what are their respective

rights.

| (Emphasis supplied). See Floyd, supra at 1485 n. 40

(“Apart from liability limitations contained in Article 22

28

of the Convention, the issue of the computation of dam-

ages generally is governed by local law, except, of course,

where such law conflicts with the Convention.”).

As Judge King observed in Rhymes, this “however

founded” language is entirely antithetical to any notion

that the Convention “entirely preempts” the field. In

addition to the decisions cited in Rhymes, see In Re Hijack-

ing of Pan American World Airways, Inc., Aircraft, etc., 729

F. Supp. 17 (S.D.N.Y. 1990). Other provisions of the Con-

vention also demonstrate, clearly and expressly, that the

Convention imposes “conditions and limits” upon local

law, rather than “entirely preempting” the field.

For example, Article 22 defers the issue of “periodical

payments” to “the law of the court to which the case is

submitted”. Article 25 waives all provisions. Which

exclude or limit” liability if damages caused by “such

default . . as, in accordance with the law of the court to

which the case is submitted, is considered to be equiva-

lent to wilful misconduct”. Article 28 provides that all

Iqluestions of procedure shall be governed by the law of

the court to which the case is submitted”. Article 29

provides that “[t]he method of calculating the period of

limitation shall be determined by the law of the court to

which the case is submitted”. See Halmos v. Pan American

World Airways, Inc., 727 F. Supp. 122 (S.D.N.Y. 1989). And,

quite apart from these express references to local law, the

Convention simply does not speak to numerous questions

which must necessarily be decided by reference to local

law - issues like agency, respondeat superior, contribution,

indemnification, evidence, and so on.

29

In short, an action to redress a death or injury arising

out of an accident in international air transporation finds

most of its substance in local law, and only “conditions

and limits” in the Warsaw Convention - so it is impossi-

ble that the Convention “entirely preempts” local law.

The proof of the pudding is in Article 25, which removes

all the “conditions and limits” of the Convention if

“wilful misconduct” is proven because if “wilful mis-

conduct” is proven in any given case, the cause of action

will become almost exclusively an action under local law,

and the “conditions and limits” of the Convention will

become largely irrelevant. For all of these reasons, evi-

dent on the face of the Convention itself, it simply cannot

be legitimately argued that the Convention so “entirely

preempts” the field that all local law is rendered irrele-

vant - and it should follow that Judge King’s conclusion

to that effect in Rhymes is legally unassailable.

Eastern argues, in essence, that the need for “unifor-

mity” in this area renders the conclusion reached in

Rhymes indefensible. However, in our judgment at least,

this assertion confuses apples and oranges. To the extent

that the Warsaw Convention leaves many issues open to

local law, absolute “uniformity” was clearly not an object

of the Convention. To the extent that the Convention

addresses particular aspects of the problem, of course,

“uniformity” was clearly an object. But the “uniformity”

sought was not “uniformity” of forum; it was “unifor-

mity” in the “conditions and limits” to be applied by all

courts adjudicating cases governed by the Convention -

state, federal, or otherwise. And because state courts fully

recognize that the “conditions and limits” of the Conven-

tion must be applied to actions brought in state court in

30

which the Convention governs, “uniformity” in the law is

fully achieved by virtue of the Supremacy Clause, even if

the “well-pleaded complaint rule” is fully enforced.

It is also worth noting that Eastern’s position, if

adopted, will not even ensure uniformity of forum. Arti-

cle 28 of the Convention gives a plaintiff a choice of up to

four different countries in which to bring an action, and if

the United States is selected, the plaintiff can make a

second-round election between invoking the jurisdiction

of a federal court or the concurrent jurisdiction of a state

court. To allow removal of a well-pleaded state law claim,

as Eastern has effectively urged, will simply add a third

round of election between options = and the “uniformity”

which Eastern seeks will therefore be defeated each and

every time a defendant chooses at the third round not to

remove a well-pleaded state law claim (which, in our

experience, is a not infrequent choice). It would even be

open to a defendant sued in multiple cases in a state

court, or in various state courts, to frustrate “uniformity”

for tactical purposes even further by removing some of

the cases and leaving others alone, in an effort to confuse

the outcome with as many inconsistent results as it can

obtain, or for delay, or for any other tactical reason which

might be served by the exercise of such an option.

It is, incidentally, precisely this type of forum-shop-

ping by defendants which the “well-pleaded complaint

rule” was purposefully designed to prevent:

It is true that when a defense to a state claim is

based on the terms of a collective-bargaining

agreement, the state court will have to interpret

that agreement to decide whether the state claim

survives. But the presence of a federal question,

et — :::: —

31

even a § 301 question, in a defensive argument

does not overcome the paramount policies

embodied in the well- complaint rule

that the —— is the master of the complaint,

that a question must appear on the face

of the complaint, and that the plaintiff may, by

eschewing claims based on federal law, choose

to have the cause heard in a state court. When a

— invokes a 4 1 b a collective-

rgain t, int s chosen to

lead wha: te have baba must be rded asa

eral claim, and removal is at the defendant’s

option. But a defendant cannot, merely by inject-

ing a federal question into an action that asserts

what is plainly a state-law claim, transform the

action into one arising under federal law,

thereby selecting the forum in which the claim

shall be litigated. If a defendant could do so, the

3 would be master of nothing. Congress

as long since decided that federal defenses do

not provide a basis for removal.

Caterpillar Inc. v. Williams, 482 U.S. 386, 398-99 (1987).

The third round of forum selection which Eastern has

proposed in the name of “uniformity” here clearly runs

afoul of this proscription. It also runs afoul of the propo-

sition that “uniformity of forum” is an insufficient

motivation, by itself, to justify expanding the statutory

jurisdiction of the federal courts. See Finley v. United

States, 490 U.S. __, 109 S. Ct. 2003, 104 L. Ed.2d 593

(1989). And the fact that “uniformity” of forum is well

nigh impossible to achieve under the Warsaw Convention

in any event demonstrates, most respectfully, that “uni-

formity” is simply not the issue here. The issue here is

whether the Warsaw Convention “completely preempts”

the field, as Eastern urges - or whether, as Rhymes holds,

32

it only preempts inconsistent local law. As we have dem-

onstrated, the face of the Convention itself is susceptible

of only the latter reading.

Eastern has also relied upon several snippets of the

Minutes of the Warsaw Convention in purported support

of its “complete preemption” argument. These snippets

have been taken out of context, however. They relate only

to particular provisions under discussion at the time, in

which the intention clearly was to preempt particular

aspects of local law. On the more general question of

whether the Convention was meant to preempt the field

entirely, it is both evident from the Minutes, and some-

times express in them, that the intention of the drafters

was not to write a document which entirely preempted

the field, but to write a document which regulated only

certain areas of international air law, leaving all unreg-

ulated areas to local law. We will have to collect a number

of passages from several different places in the Minutes

to make this demonstration, so we ask the Court to bear

with us. Our references will be to Minutes, Second Interna-

tional Conference on Private Aeronautical Law, Oct. 4-12,

1929, Warsaw (translated by R. Horner and D. Legrez,

1975) (hereinafter simply “Minutes”).

The concern that the initial working draft of the

Warsaw Convention did not cover the entire field first

surfaced at the close of the debate upon proposed sub-

stantive amendments to the draft. The following

occurred:

THE PRESIDENT: Sirs, we have finished the

general discussion on the amendments of first

order, amendments of substance. Mr. Giannini

has the floor.

33

MR. GIANNINI (Italy): Sirs, this morning we

have been presented with several amendments:

one submitted by the Romanian Delegation, one

by the Delegation from the USSR, one by the

Swiss Delegation and another by the Yugoslav

Delegation.

I believe tha: a'l our colleagues will be in agree-

ak me in saying these are questions

o ing, except for the Yugoslav proposal,

while there is one part which touches the very

substance of the Convention.

The Yugoslav Delegation is preoccupied with

the fact that this convention is the first one that

we do, and it declares:

As regards the Convention, the Yugoslav

Delegation considers that in order to facili-

tate the work of national courts, one should

add to said convention an article specifying:

‘In the absence of stipulations in the present

Convention the analogous provisions of the

Bern International Convention of October

23, 1924, concerning the carriage of trav-

e

elers and ba 0 by railroad must be sec-

ondarily ap

The consequences of this proposal are enor-

mous, because there are so many problems

which are envisaged in the Bern Convention and

which are not provided for by our Convention

that I think that the subsidiary becomes the

principal.

Moreover, there are such divergences between

the system of our Conveption and the general

system of the Bern Conv@ntion that one cannot

take, as subsidiary, a system which is neither

analagous [sic] nor parallel.

This is why I believe that, for the moment at

least, we have not yet arrived at a system which

34

is uniform enough to envisage recourse to this

subsidiary system.

I want very much to make this declaration,

because I believe myself to be one of the people

who is the most occupied with air law, and |

believe that I am able to say that the interest of

air law is to dev freely, not to be op

either by maritime law, by terrestrial law, or by

the law of railroads.

I implore our colleagues therefore, not to insist

on their proposal, use the two ways of

thinking are very different.

I would like to ask the Reporter to give us his

opinion.

MR. DE VOS, Reporter: The role of Reporter has

never been as easy as in this circumstance. First

of all, because Mr. Giannini took the floor for

him, in a much better way than he would have

done; then and I’m very happy for it I was

able to discuss the Yugoslav proposal with its

authors before the meeting, and I came away

with the impression that Yugoslav Delega-

tion, in the e of this difficulty in PP y-

ing two different in two matters, does

not insist on its proposal.

MR. SIMOVITCH (Yugoslavia): Sirs, despite all

the efforts made here by all, in order to give

basic principles for decisions of national courts,

one cannot provide for all cases, or specify all

the details which can arise in the case of car-

riage.

It’s for this reason that the Yugoslav Delegation,

with the goal of aiding national courts, =

this proposal which would permit them to ta

the Bern convention as the basis of their deci-

sions.

35

The Yugoslav Delegation knows that the appli-

cation of this railroad convention presents diffi-

culties, inasmuch as this convention is not

signed by some nations (England, USSR), but it

makes the su on for the purpose of aiding

the efforts of the Assembly.

THE PRESIDENT: Does someone ask the floor

on this question?

put the Yugoslav proposal to a vote.

(The proposal is rejected.)

Minutes, supra at 134-35.

Immediately after the Yugoslav Delegation’s pro-

posal was debated and rejected, the Italian Delegation

raised a related problem. It pointed out that the draft of

the Convention did not purport to regulate carriage on a

“friendly” basis, and suggested that it should - since, if

we say nothing it will doubtless always be a more serious

system of liability than that of the Convention”. Minutes,

supra at 135. This proposal was shouted down by the

delegates, and the Reporter observed, “We must limit our

efforts and I fear, indeed that we cannot enter on this

road”. Minutes, supra at 136. Undaunted, the Italian dele-

gate insisted that local law concerning “friendly” carriage

was much harsher than the Convention had proposed for

commercial carriage, and he proposed that his suggestion

should at least be referred to the drafting committee. Id.

This proposal was adopted, but it apparently died in the

committee, because it is not mentioned again in the Min-

utes. Thereafter, there was a brief discussion of what law

should apply in the “cases of non-execution of the con-

tract of carriage”, and there was general agreement that

“[iJt’s the national law which governs the case”. Minutes,

36

supra at 172. Neither of these two exchanges satisfied the

Yugoslav Delegation’s problem, of course, but both of

them demonstrate that it was the general understanding

that, in areas not regulated by the Convention, local law

would govern.

Given this apparent consensus, the Czechoslovakian

Delegation proposed an alternative amendment to satisfy

the Yugoslav Delegation’s concern. The following

occurred: 5

MR. DE VOS, Reporter: We have an article pro-

posed by the Czechoslovak Delegation as an

additional article:

37

propose adopting for the [title of the] Conven-

tion: “Convention relating to certain rules for

the unification of private aeronautical law”.

Given that the title indicates the s 1 charac-

ter of the Convention, the Czechoslovak Delega-

tion no lon insists on its amendment. As to

the proposal of applying secondarily the rules of

the Bern Convention, it was withdrawn.

THE PRESIDENT: Consequently, the proposals

are withdrawn.

MR. DE VOS, Reporter. There is only the word-

ing proposal, concerning the wording of the

title.

In the absence of provisions in the present

Convention, the provisions of laws and

national rules relative to carriage in each

State shall apply.

I want to remark that this was provided for:

Provided that the case which arises was not

Minutes, supra at 176.

That the Convention was not an attempt to cover the

entire field, but was only an effort to regulate some

aspects of international air travel, was thereafter con-

firmed by the delegates as follows:

rovided for in the Convention, it’s the common

aw which is applicable.

I believe therefore, that this provision would be

of no use.

MR. GIANNINI (Italy): It was withdrawn.

MR. DE VOS, Reporter: There were two pro-

posals, one from the Czechoslovak Delegation

which consisted in applying national law for

cases not provided for by the Convention, and

then a proposal of the Yugoslav Delegation

which concerned the application of the Bern

Convention for cases not provided for by the

Convention.

MR. GIANNINI (Italy): Following a suggestion

made by the German Delegation we are going to

A — — — —

MR. RIPERT (France): In the name of the French

Delegation, I have the honor of presenting the

following request:

The conference,

Considering that the Warsaw Convention

provides only for certain difficulties relating

to air carriage and that international air

navigation raises many other questions that

it would be desirable to provide for by

international agreements,

Expresses the wish:

That, through the offices of the French Gov-

ernment, which has taken the initiative of

the convening of these conferences, that

there be convened subsequently, new con-

ferences which will pursue this work of uni-

fication.

THE PRESIDENT: We are ted with one

single proposal: That of the French Delegation.

Therefore, I put to a vote the French 2

tion’s pro — There is is no opposition? .

proposal is adopted.

Minutes, supra at 182-83.

When the final draft of the convention was ultimately

read for approval, the draft title had been amended to

include the word “certain”. The following then occurred:

The first question which was presented to us

was that of the drafting of the title. We have

—_ the title: Convention for the Unification

of Certain Rules Relating to International Car-

riage by Air”.

This suffices to say that this Convention does

not gy for the entire matter and gives satis-

faction to certain delegations such as the

Czechoslovak Delegation, which asked that the

word “Certain” be added.

Minutes, supra at 188. It will be remembered that the

Czechoslovakian Delegation had accepted this amend-

ment as an appropriate alternative to its proposed

amendment which had made express the notion that the

Convention “does not provide for the entire matter”, and

that local law should govern all issues not expressly

regulated by the Convention. This change in the title to

accommodate this concern was thereafter adopted by the

convention. Minutes, supra at 189.

39

We are left, then, with a single word in the title to the

Convention, the word “Certain”, which is meant to con-

vey exactly what Rhymes holds — that the Warsaw Con-

vention preempts inconsistent local law only in the areas

which it expressly covers, and that it was not intended to

preempt the entire field. Perhaps that is a lot to extract

from a single word, but when the background which

generated that single word is considered, there can be no

question that that is precisely what it was intended to

convey.

In short and in sum, to disagree with Rhymes and

read “complete preemption” into the Warsaw Convention,

the Court would have to disregard the express language

of the Convention and the plain import of its legislative

history. This Court has recently made it clear that it can

do neither. See Chan v. Korean Airlines, Ltd, 490 U.S. ___,

109 S. Ct. 1676, 104 L. Ed.2d 113 (1989). Because the

Warsaw Convention undeniably stops well short of the

“complete preemption” theory upon which Eastern's

quarrel with Rhymes depends, we respectfully submit that

Rhymes was correctly decided.

—

40

CONCLUSION

It is respectfully submitted that the court of appeals’

decision should be affirmed.

Respectfully submitted,

Joe. D. Eaton, Esquire

Counsel of Record

Popxuurst, Orseck, JOSEPSBERG,

Eaton, Meapow, Oun &

Perwin, P.A.

25 West Street, Suite 800

Miami, 33130

(305) 358-2800

Attorneys for Respondents