# Respondents Brief — Eastern Airlines, Inc. v. Floyd

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1991
- **Citation:** 499 U.S. 530

## Text

TABLE OF CONTENTS

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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

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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

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*
Restatement (Second) of Torts, § 436A (1965) 12
Restatement (Second) of Torts, § 905 (1965)............ 12
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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0741%3A7. Public record. Not legal advice.