Appendix — El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng

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UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Nos. 331, 857—August Term, 1996

(Argued November 20, 1996 Decided June 13, 1997)

Docket Nos. 96-7447, 96-7619

TSUI YUAN TSENG,

Plaintiff-Appellant-

Cross-Appellee,

aa ¥ ao

EL AL ISRAEL AIRLINES, LTD.,

Defendant-Appellee-

Cross-Appellant.

Before:

NEWMAN, Chief Judge,

CARDAMONE and ALTIMARI, Circuit Judges.

Appeal from a judgment entered in the United States

District Court for the Southern District of New York

(Stanton, J.), following a bench trial, finding in favor of

plaintiff on her claim of property damage and awarding

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her $1,034.90, but dismissing plaintiff's claims for per-

sonal injury for failure to establish an injury cognizable

under Article 17 of the Warsaw Convention.

Affirmed in part, reversed in part, and remanded.

ROBERT H. SILK, New York, New York

(Silk, Bunks, & Suckle, P.C., New York,

New York, of counsel), for Plaintiff-

Appellant.

DIANE WESTWOOD WILSON, New York,

New York (Debra A. Shields, Condon &

Forsyth, New York, New York, of coun-

sel), for Defendant-Appellee.

CARDAMONE, Circuit Judge:

We have two issues to resolve on this appeal. One

relates to the meaning of the term “accident” under Arti-

cle 17 of the Warsaw Convention. The second, and by

far more elusive, is whether a plaintiff denied a remedy

for alleged injuries under the Convention because it does

not apply may then pursue a claim for the same injuries

in state court. The Supreme Court has not answered this

question, and our search for the correct answer is some-

what reminiscent of Sir Galahad’s search for the “Holy

Grail.” But unlike that Crusader who, pressing on, left

the plain and climbed the height,' we must toil in the

' So pass I hostel, hall, and grange;

By bridge and ford, by park and pale.

3a -

valley, examining the Convention’s language, its draft-

ing history, decisional law and the thoughts of scholarly

commentators.

Plaintiff Tsui Yuan Tseng (plaintiff or appellant)

appeals from a judgment entered in the United States

District Court for the Southern District of New York

(Stanton, J.) that awarded her $1,034.90 for damages

against defendant E! Al Israel Airlines, Ltd. (E! Al) for

loss of her baggage, but dismissed her personal injury

claim against the same defendant for failure to establish

a cognizable injury.

Tseng alleged that El Al caused her to suffer personal

injuries when it subjected her to a security search prior

to her boarding an El Al flight from New York to Tel

Aviv, Israel, and that the airline damaged and/or lost

some of her personal belongings while searching her

luggage. The district court ruled that the carrier's con-

duct constituted an “accident,” giving rise to liability

under Article 17 of the Warsaw Convention,? but that

Tseng was barred from recovery because the only

injuries she alleged were psychological and emotional,

not physical.

BACKGROUND

Tseng, a New York resident employed by Beth Israel!

Medical Center, went on May 22, 1993 to John F.

All-arm'd I ride, whate’'er betide,

Until I find the Holy Grail.

Alfred Lord Tennyson, Sir Galahad, in The Poetic and Dramatic Works

of Alfred Lord Tennyson 101, 101 (WJ. Rolfe ed., Cambridge ed.

Houghton, Mifflin & Co. 1898).

2 Convention for Unification of Certain Rules Relating to International

Transportation by Air, concluded Oct. 12, 1929, 49 Stat. 3000, T.S. No.

876 (1934), reprinted in 49 U.S.C. § 40105 note.

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Kennedy International Airport in New York where she

was scheduled to take El Al Flight LY-008 to Tel Aviv.

Upon arrival, she proceeded to El Al’s terminal, pre-

sented her ticket and U.S. passport to an El Al security

guard, entered the terminal building and proceeded to a

security area, where she was asked routine questions

regarding her destination. Based upon her responses,

which the security guard considered illogical—no expla-

nation of why they were considered so is in the record—

Tseng was classified as a “high risk” passenger.

Pursuant to the airline’s security procedures, plaintiff

was taken to a private room where she was subjected to

a security search for explosives or detonating devices.

The term “security search” refers to an intrusive search

of a passenger's body initiated after a routine check by

metal detector and questioning have led airline person-

nel to deem a passenger a security risk. Tseng was told

to remove her shoes, jacket and sweater, and then

instructed to lower her blue jeans to mid-hip level. A

female security guard proceeded to search Tseng’s entire

body manually, including her breasts and groin area. The

search, conducted outside Tseng’s clothing, lasted 15

minutes. Security guards also searched Tseng’s baggage.

The security search of Tseng and her baggage conformed

to El Al procedures, which had been adopted pursuant to

Federal Aviation Administration regulations.

Following the search, El Al decided that Tseng did not

present a security risk after all and she was permitted to

board her flight. Plaintiff testified that, as a result of

defendant's search, she “was really sick and very upset”

during the course of the flight, and “emotionally trau-

matized and disturbed” throughout her month-long trip

to Israel and thereafter. Subsequently, she underwent

medical and psychiatric treatment; but, at no time did

Sa

Tseng claim she suffered any physical injury as a result

of the bodily search.

During the flight plaintiff was unable to locate several

personal items she had in her carry-on bag, and, upon

arriving in Tel Aviv, she was missing, among other

things, $1000 in cash and a diamond Rolex watch. Tseng

did not inquire about the lost items during her flight or

upon landing in Tel Aviv. However, while at the Tel Aviv

airport she did inquire about her camera, which had been

confiscated at JFK to be X-rayed. When plaintiff arrived

at her hotel, she telephoned the airline’s Tel Aviv office

to inquire about the camera and the other missing items.

She testified that an E] Al representative informed her

that she must take care of the matter in New York, and

that the airline was “not interested in [her] missing

items.” On July 1, 1993, having returned from her trip,

Tseng provided written notice to El Al’s New York

office that several items that accompanied her to the E]

Al Terminal for departure on her trip were either miss-

ing or damaged.

Since she did not obtain a satisfactory response, plain-

tiff initiated the action giving rise to this appeal by fil-

ing a complaint in May 1994 in the New York State

Supreme Court for New York County. The complaint

alleged a state law personal injury claim arising from the

assault and false imprisonment; it also asserted a prop-

erty claim relating to her lost and/or damaged property.

El Al removed the case to federal court pursuant to 28

U.S.C. § 1441(d), because El Al is a “foreign state”

within the meaning of 28 U.S.C. § 1603(a), which pro-

vides that “[a} ‘foreign state’. . . includes a political

subdivision of a foreign state or an agency or instru-

mentality of a foreign state-”

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In federal court, El Al argued that plaintiff’s action

was governed by the Warsaw Convention. The district

court agreed, ruling it applicable because the airline’s

search of plaintiff constituted an “accident” within the

meaning of Article 17. In applying the Convention, the

trial court found the carrier liable under Article 18 for

the loss and damage to Tseng’s carry-on and checked

baggage, and awarded her $1,034.90. The property loss

award was calculated under Articles 22(2) and (3) of the

Convention, which limit recovery for checked baggage

to 250 francs per kilogram of baggage, and limit recov-

ery for carry-on baggage to 5000 francs per person.

These amounts have been converted to $20 per kilogram,

or $9.07 per pound, for checked baggage and $400

per passenger for carry-on luggage. See 14 C.F.R.

§ 221.176(a); Warsaw Convention Liability Limitations,

39 Fed. Reg. 1526 (1974). Because the weight of Tseng’s

baggage could not be determined, the district court used

the maximum weight allowed by El Al for checked bag-

gage—70 pounds—to make its calculation. Tseng’s per-

sonal injury claim was dismissed because she failed to

show a physical injury as required by Article 17.

Plaintiff appeals the dismissal of her personal injury

claim and El Al cross-appeals from the property damage

award. We affirm, in part, and reverse, in part, and

remand to the district court for further proceedings.

DISCUSSION

We are presented with two issues of considerable

import. First, we must determine whether the security

search of a passenger initially suspected of presenting a

possible risk of terrorism but who is later determined not

to present a danger constitutes an “accident” within the

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meaning of Article 17 of the Warsaw Convention. Sec-

ond, if the answer to the first question is “no,” we must

then determine whether the Convention provides the

exclusive avenue for recovery of injuries sustained dur-

ing international air travel even in cases where the terms

of the Convention do not apply and it does not therefore

subject the carrier to liability for damages.

Because there are a number of decisions setting forth

the basic structure of the Convention—a comprehensive

overview of it is set forth in Jn re Air Disaster at

Lockerbie, Scotland, 928 F.2d 1267, 1270-71 (2d Cir.

1991) [Lockerbie I]|—we discuss it only insofar as nec-

essary to the resolution of the issues before us.

I Article 17

A. Definition of “Accident”

Tseng maintains it was error to dismiss her personal

injury claims for want of a cognizable injury. The dis-

trict court ruled that a security search of a passenger

based upon suspicion of circumstances that turned out

not to involve any danger constitutes an accident, sub-

jecting the carrier to liability under Article 17. Carrier

liability for personal injuries sustained by passengers

engaged in international air travel is governed by Arti-

cle 17 of the Convention, which states:

The carrier shall be liable for damage sustained in

the event of the death or wounding of a passenger or

any other bodily injury suffered by a passenger, if

the accident which caused the damage so sustained

took place on board the aircraft or in thé course of

any of the operations of embarking or disembarking.

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Article 17 applies where (1) an accident has occurred,

in which (2) a passenger suffered death, wounding, or

~ any other bodily injury, and (3) the accident occurred

either on board the aircraft or in the course of embarking

or disembarking from the plane. See Eastern Airlines,

Inc. v. Floyd, 499 U.S. 530, 535-36 (1991). All three of

these requirements must be met to invoke Article 17 lia-

bility. If a passenger satisfies the requirements for Arti-

cle 17 liability, the amount of that liability was once

limited to $75,000, see In re Air Disaster at Lockerbie

Scotland, 37 F.3d 804, 812 (2d Cir. 1994), but 77 inter-

national carriers recently agreed to eliminate the $75,000

liability cap and impose strict liability up to 100,000

Special Drawing Rights (SDRs), roughly equivalent to

$145,000, see International Air Transport Association

Intercarrier Agreement on Passenger Liability, approved

by D.O.T. Order 96-11-6, 1996 WL 656334 (D.O.T. Nov. -

12, 1996). See DOT Approval Allows Liability Limits to

be Abolished, Air Safety Wk., Nov. 18, 1996. However,

a plaintiff may not recover for purely psychic injuries.

See Floyd, 499 U.S. at 552.

Although the Convention does not define the term

“accident,” the Supreme Court describes it as “an unex-

pected or unusual event or happening that is external to

the passenger.” Air France v. Saks, 470 U.S. 392, 405

(1985). Yet “not every identifiable incident or occur-

rence during a flight is an accident within the-meaning

of Article 17 even if the incident or occurrence gives

rise to an injury.” Quinn v. Canadian Airlines Int'l Ltd.,

No. 35558/91U, 1994 Ont. C. J. LEXIS 1695, at *10 (Ct.

Just. May 30, 1994) (air turbulence not an accident); see

Pflug v. Egyptair Corp., 961 F.2d 26, 28-29 (2d Cir.

1992) (hijacking is an accident).

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Thus, “accident” does not include those typical events

that a passenger may be presumed to have accepted, that

is to say, those injuries occurring in the normal operation

of the aircraft or the airline are not injuries caused by

“accidents” under Article 17. See Saks, 470 U.S. at 406:

Abramson v. Japan Airlines Co., Ltd., 739 F.2d 130, 133

(3d Cir. 1984); Salerno v. Pan American World Airways,

Inc., 606 F. Supp. 656, 657 (S.D.N.Y. 1985). Rather, it is

only those unexpected “risks characteristic of air travel”

that may occur during flight or in the course of embark-

ing or disembarking and that are external to the pas-

senger which may be called “accidents.” See Curley v.

American Airlines, Inc., 846 F. Supp. 280, 283 (S.D.N.Y.

1994); see also Daniel Goedhuis, National Airlegisla-

tions and the Warsaw Convention 200-01 (1937). A “risk

characteristic of air travel” is one that is to some extent

unique to air travel, or to which carriage by air is pecu-

liarly susceptible. See Martinez Hernandez v. Air

France, 545 F.2d 279, 284 (1st Cir. 1976) (“[W]e think

the risk of a random attack such as [a terrorist attack

inside the baggage claim area] is not a risk characteris-

tic of travel by aircraft, but rather is a risk of living in a

world such as ours.”).

At the time of the Convention’s drafting, the delegates

to the Warsaw conference understood “accident” to

apply primarily to air disasters such as plane crashes.

See Day v. Trans World Airlines, Inc., 528 F.2d 31, 37-

38 (2d Cir. 1975); Second International Conference on

Private Aeronautical Law: Minutes 52 (Robert C. Horner

& Didier Legrez trans., 1975) [hereinafter Minutes]

(“[OJne can classify aircraft accidents in three cate-

gories: those which arise out of errors of piloting; those

which arise out of defect in the functioning of the air-

craft{;] and those which are designated as being the

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result of an Act of God, which is the majority of

cases.”).

“Since 1929, the risks of aviation have changed dra-

matically in ways unforeseeable by the Warsaw

framers.” Day, 528 F.2d at 37. As a result, courts regu-

larly have viewed as “accidents” such events as terror-

ist attacks, see, e.g., id. at 37-38, hijacking, see, e.g.,

Pflug, 961 F.2d at 29; Haddad v. La Compagnie

Nationale Air France SA [1981] E.C.C. 207 (CA Paris

1979), and bomb threats, see, e.g., Margrave v. British

Airwcys, 643 F. Supp. 510, 512 (S.D.N.Y. 1986);

Salerno, 606 F. Supp. at 657. On the other hand, the term

has been held not to apply in instances such as death of

a passenger by natural causes, see, e.g., Walker v. East-

ern Air Lines, Inc., 785 F. Supp. 1168, 1170 (S.D.N.Y.

1992), fights between passengers, see, e.g., Price v.

British Airways, No. 91 Civ. 4947, 1992 WL 170679, at

*3 (S.D.N.Y. July 7, 1992), routine repressurization of

the aircraft, see, e.g., Warshaw v. Trans World Airlines,

Inc., 442 F. Supp. 400, 413 (E.D. Pa. 1977), or injuries

resulting from intoxication, see, e.g., Padilla v. Olympic

Airways, 765 F. Supp. 835, 838 (S.D.N.Y. 1991).

Given the near absolute liability now imposed by the

Convention once an accident is found to have occurred,

we invoke its provisions with some degree of care, read-

ing its terms strictly and construing them narrowly. See

McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 316

(Ist Cir. 1995) (Article 17 shouldbe read parsimo-

niously because “there are sound policy reasons to con-

fine . . . liability to the letter of the text, narrowly

construed.”).

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B. Security Search Not an “Accident”

We turn now to consider whether the security search

of Tseng was an accident under Article 17. Several rea-

sons lead us to part from the district court, which

thought it was. In the first place, being subjected to a

personal search is a distasteful but common incident of

international air travel. As such, it cannot be considered

“unexpected” or “unusual,” regardless of a passenger’s

subjective reaction to it. Or, as we just stated, not every

incident occurring during a flight or in the process of

embarking or disembarking is an “accident” within the

meaning of Article 17. As one commentator explained:

the passenger . . . is aware of the typical events

related to an air carriage (turbulence, bad-weather,

flashes of lightning onto the plane’s hull, changes in

cabin pressure, dry air in the cabin, so called ‘air

pockets’, more or less ‘hard’ landings, etc.) and can-

not realistically exclude the possibility of such occur-

rences happening on his flight, so he accepts them.

Elmar Giemulla et al., Warsaw Convention art. 17, para.

12 (Bernd Wickert-Kénig trans., 1995).

Security clearance of one degree or another is part of

every passenger’s experience. And, a search of a pas-

senger may not be said today to be an atypical event in

international air travel. Each passenger must routinely

submit to a metal detector and interrogation. Not infre-

quently, these initial procedures lead to additional mea-

sures, such as the use of a metal detecting wand or a

security search. These events are an anticipated aspect of

international travel. Whether appellant expected to be

subjected to a security search is not a relevant consid-

eration because she reasonably should have been aware

that she might be.

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A second reason that the subject search was not an

“accident” is because it was part of the airline’s normal

procedure. Every air carrier is required by Federal Avi-

ation Administration regulations to have in place secu-

rity procedures to prevent terrorist attacks and to deny

transport to anyone who does not consent to be searched

upon request. See 14 C.F.R. § 129.25(b), (g)(1)-(2). As

part of these security procedures, carriers are required to

screen all passengers and baggage prior to boarding. See

49 U.S.C. § 44901(a) (requiring screening of passen-

gers); 49 U.S.C. § 44906 (applying standards to foreign

air carriers); 14 C.F.R. § 108.9(a). In accordance with

these requirements, E] Al conducts security searches of

passengers daily. For example, in 1993 it conducted two

to four security searches a day. Hence, as in Saks, this

Case appears simply to involve Tseng’s personal reaction

to the routine operating procedures of the defendant air-

line.

A further reason we cannot conclude that this incident

was an “accident” within the terms of the Convention is

because the Convention does not aim to derogate from

the efforts of international air carriers to prevent vio-

lence and terrorism, efforts which are widely recognized

and encouraged in the law. See, e.g., 49 U.S.C.

§ 44901(a); 49 U.S.C. § 44906; Day, 528 F.2d at 34, 37

n.18 (recognizing the goal of accident prevention); 14

C.F.R. § 108.9(a) (screening utilized to “prevent or deter

the carriage aboard airplanes of any explosive, incen-

diary, or a deadly or dangerous weapon”).

Inherent in any effort to detect malefactors is the risk

that innocent persons will be subjected to scrutiny and

inconvenience. Cf. Anderson v. Creighton, 483 U.S. 635,

641 (1987) (“[I]t is inevitable that law enforcement offi-

cials will in some cases reasonably but mistakenly con-

13a

clude that probable cause is present... .”). This is

especially true in airports, where security personnel have

only brief interaction with passengers, and must rely on

such investigative tools as risk profiles, as was the case

here, because there is insufficient time to conduct a more

extensive investigation. The inconvenience and embar-

rassment to the individual passenger of being erro-

neously searched, therefore, is the price passengers pay

for the degree of airline safety so far afforded them. To

this end, courts have recognized that airport security

officials are to some extent freed from the exacting

requirements typically attached to governmental

searches of individuals. See, e.g., United States v. Bell,

464 F.2d 667, 675 (2d Cir. 1972) (Friendly, C.J., con-

curring); New York v. Waring, 174 AD2d 16, 19 (App.

Div. 2d Dep't), appeal denied, 79 NY2d 1009 (1992). To

suppose the drafters of the Convention aimed to impose

close to absolute liability on air carriers for searches that

disclosed no danger seems to us highly unlikely.

Our final reason deals with appellant's misapprehen-

sion regarding two Articles of the Convention. Tseng

appears to assert that El] Al’s conduct is “wilful mis-

conduct” covered under Article 25 and therefore the car-

rier’s actions cannot constitute an “accident” within the

meaning of Article 17. Plaintiff's view is based upon a

misunderstanding of the Convention. The two articles

are not mutually exclusive; rather the finding of an

“accident” under Article 17 is a prerequisite to the impo-

sition of any liability for the personal injuries of a pas-

senger. See Saks, 470 U.S. at 396; MacDonald vy. Air

Canada, 439 F.2d 1402, 1404 (1st Cir. 1971). Article 25

simply describes a subset of “accidents” that are more

egregious and to which a greater degree of culpability

attaches.

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In sum, from the above authorities, we derive the fol-

lowing: a carrier is liable in damages for an accident on

board the aircraft or in the course of embarking or dis-

embarking that causes the death or wounding or any

other bodily injury of a passenger. An “accident” is an

unexpected or unusual event that is external to the pas-

senger; but, “accident” does not include those typical

occurrences that a passenger is presumed to accept as a

characteristic risk of air travel. As a consequence, we

hold that even though the event of which plaintiff com-

plains occurred during the course of her embarkation on

defendant's airplane, there was no accident and she suf-

fered no bodily injury. Hence, under the terms of Article

17 of the Warsaw Convention, E] Al may not be held

liable in damages to her.

II The Exclusivity of the Convention

A. State Cause of Action Lies When

Convention Inapplicable

Having ruled that the search of Tseng does not con-

stitute an “accident,” we now must determine whether

the Convention provides the exclusive remedy for per-

sonal injuries sustained in the course of international air

travel, such that Tseng is precluded from pursuing her

state law claims for false imprisonment and battery. This

is an issue the district court did not decide because it

determined the Convention was applicable. The Supreme

Court has twice declined to address the exclusivity of

the Convention where its terms are inapplicable. See

Floyd, 499 U.S. at 553; Saks, 470 U.S. at 408.

In Lockerbie I we stated in dictum that “a plaintiff

plainly may institute” “a state cause of action when the

claim does not arise under the Warsaw Convention.” 928

15a

F.2d at 1273. With the issue now squarely before us, we

reaffirm that proposition and hold that state law claims

are not precluded by the Warsaw Convention where the

event or occurrence giving rise to the injury is found to

be outside the Convention.

1. Convention’s Text

Support for this view is found in the text of the treaty

and in the context in which the words in it are used. See

Floyd, 499 U.S. at 534 (noting that treaty interpretation

should begin with the text), Saks, 470 U.S. at 396-97

(same); see also Vienna Convention on the Law of

Treaties art. 31, open for signature May 23, 1969, U.N.

Doc. A/CONF. 39/27 (1969), reprinted in 63 Am. J. Int’!

L. 875, 885 (1969). The exclusivity provision of the

Convention is found in Article 24, which provides:

(1) In the cases covered by articles 18 and 19 any

action for damages, however founded, can only be

brought subject to the conditions and limits set out

in this convention.

(2) In the cases covered by article 17 the provi-

sions 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.

The provision clearly states that resort to local law is

precluded only where the incident is “covered” by Arti-

cle 17, meaning where there has been an accident, either

on the plane or in the course of embarking or disem-

barking, which led to death, wounding or other bodily

injury, see Floyd, 499 U.S. at 535-36. To extend the

scope of the Convention’s exclusivity beyond that which

it expressly provides would require rewriting Article 24

16a

or Article 17, a task only the signatories to the Con-

vention may undertake. See Saks, 470 U.S. at 406; see

also Brink's Ltd. v. South African Airways, 93 F.3d 1022,

1027 (2d Cir. 1996) (the task of interpretation begins

with the “literal language” of the treaty), cert. denied,

117 S. Ct. 959 (1997).

2. Drafting History

The plain meaning of Article 24 is also supported by

reference to the drafting history, or travaux prepara-

toires, of the Convention. “[T]reaties are construed more

liberally than private agreements, and to ascertain their

meaning we may look beyond the written words to the

history of the treaty, the negotiations, and the practical

construction adopted by the parties.” Choctaw Nation of

Indians v. United States, 318 U.S. 423, 431-32 (1943);

see also Vienna Convention, supra, art. 32, reprinted in

63 Am. J. Int’! L. at 885 (it is appropriate to use sup-

plementary materials to “confirm the meaning resulting

from” a contextual reading of the treaty’s plain lan-

guage).

The travaux preparatoires indicate that national law

was intended to provide the passenger’s remedy where

the Convention did not expressly apply. During the con-

ference, the Czechoslovakian delegation proposed an

additional article that read: “In the absence of provisions

in the present Convention, the provisions of laws and

national rules relative to carriage in each State shall

apply.” Minutes, supra, at 176. The intent of the pro-

posed article was set forth in its proviso: “Provided that

the case which arises was not provided for in the Con-

vention, it’s the common law which is applicable.” /d.

However, the Czechoslovakian delegation was satisfied

that its concern was addressed and withdrew its proposal

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when the title of the Convention was amended to refer to

the unification of “certain rules,” thereby indicating “the

special nature of the Convention.” /d. (emphasis added);

see id. at 188. Other delegates assumed it beyond ques-

tion that the Convention was nonexclusive where it did

not apply. For example, when asked what law would be

applicable to cases excluded from the Convention under

Article 34 (experimental trials exception), the French

delegate exclaimed that “[nJaturally” the common law

would apply. Jd. at 85-86.

B. Other Decisional Law and Scholarly Comment

Moreover, a number of courts and commentators have

concluded that the Convention provides the exclusive

remedy only where its provisions expressly apply. See,

¢.g., Schroeder v. Lufthansa German Airlines, 875 F.2d

613, 618 (7th Cir. 1989) (court reached plaintiff's state

law claims after determining that the Convention was

not implicated); Abramson, 739 F.2d at 134 (“if [the

Convention] does not apply, it leaves liability to be

established according to traditional common law rules”):

Martinez Hernandez, 545 F.2d at 284; Tandon v. United

Air Lines, 926 F. Supp. 366, 370-71 (S.D.N.Y. 1996):

Beaudet v. British Airways, PLC, 853 F. Supp. 1062,

1072 (N.D. Ill. 1994) (state law negligence claim not

pre-empted where Convention is inapplicable); Levy v.

American Airlines, No. 90 Civ. 7005, 1993 WL 205857,

at *5 (S.D.N.Y. June 9, 1993), aff'd, 22 F.3d 1092 (2d

Cir. 1994); Walker, 785 F. Supp. at 1173 (S.D.N.Y.); Fis-

cher v. Northwest Airlines, Inc., 623 F. Supp. 1064, 1066

(N.D. Ill. 1985) (denying motion to dismiss state law

claims, but dismissing Convention claims); Rolnick v. El

Al Israel Airlines, Ltd., 551 F. Supp. 261, 264 (E.D.N-Y.

1982) (permitting pursuit of state law claim after finding

18a

passenger's slip on escalator not to have been within the

Convention); Giemulla et al., supra, Warsaw Convention

art. 1, para. 35 (“Where the Convention is not applica-

ble, national law will be applied.”); Lawrence B. Gold-

hirsch, The Warsaw Convention Annotated: A Legal

Handbook 62 (1988) (“Where there is no ‘accident’ the

Warsaw Convention is probably inapplicable and the

passenger may proceed to use local law to prove a

claim.”); René H. Mankiewicz, The Liability Regime of

the International Air Carrier: A Commentary on the Pre-

sent Warsaw System 2, 13 (1981); Luis F. Ras, Warsaw's

Wingspan Over State Laws: Towards a Streamlined Sys-

tem of Recovery, 59 J. Air L. & Com. 587, 589 (1994).

But see Potter v. Delta Air Lines, Inc., 98 F.3d 881, 885

(Sth Cir. 1996) (“The Convention’s goals of uniformity

and certainty would be frustrated were we to allow Mrs.

Potter to assert her state law claims, even where the

Convention does not provide her a remedy.”); Salazar v.

Mexicana Airlines, 20 Av. Cas. (CCH) 917,114, at

9 17,115 (W.D. Tex. 1986) (same); Sidhu v. British-Air-

ways plc [1997] 1 All E.R. 193, 207 (H.L. 1996) (U.K.)

(same).

C. Contrary Arguments Refuted

Two arguments have been advanced in support of the

proposition that the Convention is wholly exclusive. We

reject both. The first is a structural argument advanced

in Great Britain. See Sidhu [1997] 1 All E.R. at 205-07.

In the view of the English courts, Article 17 is intended

to provide exhaustively for the circumstances under

which a carrier may be held liable. See id. at 207.

According to the House of Lords, the purpose of Article

17 is “to prescribe the circumstances, that is to say the

only circumstances, in which a carrier will be liable in

damages to the passenger for claims arising out of his

19a

international carriage by air.” Jd. Interpreted in this fash-

ion, the English courts read Article 24’s reference to

“eases covered under article 17” to mean those cases

within the Convention not covered by Articles 18 (bag-

gage) and 19 (delay), rather than to distinguish between

incidents of personal injury that are or are not within the

provisions of the Convention. See id.

We recognize that a construction of the Convention by

our sister signatories is “entitled to considerable

weight,” Saks, 470 U.S. at 404, but remain unpersuaded

to follow the course laid out in Sidhu. For one thing, the

Convention is not an exhaustive set of rules and guide-

lines dealing with international air travel, as is evident

from its formal title. As one commentator explained,

“the Convention was not intended to govern the entire

relationship between air carriers and passengers. . . ,

and does not propose to unify all such rules.” Ras, War-

saw's Wingspan, supra, at 589; see Mankiewicz, The

Liability Regime, supra, at 13, 91.

For another, neither the text nor the travaux prepara-

toires reveal an aim to provide in an exhaustive way for

the liability of the carrier for all personal injuries. It is

widely accepted that one of the two primary purposes of

the Convention was to shield carriers from financial

catastrophe following in the wake of a major accident.

See MacDonald v. Air Canada, 439 F.2d at 1405:

Andreas F. Lowenfeld & Allan I. Mendelsohn, The

United States and the Warsaw Convention, 80 Harv. L.

Rev. 497, 499 (1967). To that end, the Convention lim-

its airline liability for accidents. But the Tonvention

does not purport to insulate carriers from the ordinary

risks of doing business, such as keeping their facilities

in good repair. An injury to a passenger caused, for

example, by a failure of a carrier to keep its walkways in

20a

a safe condition is hardly the type of catastrophic inci-

dent that would likely force even a fledgling airline out

of business, and cannot be assumed to have been within

the contemplation of the drafters of the Convention.

Given the self-described limitation of the Convention,

it seems illogical to extend its scope beyond that for

which it explicitly provides.’ It is not tenable to believe

the Convention meant to address the more ordinary type

of personal injury without some express statement in the

text to that effect. Such reading would lead to the absurd

result of allowing carriers to escape liability for their

negligence—or even their intentional torts—so long as

the event giving rise to the injury was not an accident

occurring on an airplane or in the course of embarking

or disembarking as narrowly circumscribed by the def-

inition of Article 17’s meaning.

For example, it is generally accepted that a passenger

injured while riding an escalator in the airline terminal

does not have recourse under Article 17. See, e.g.,

McCarthy, 56 F.3d at 317 (passenger’s slip on escalator

not in the course of embarking or disembarking); Abu

Hamdeh v. American Airlines, Inc., 862 F. Supp. 243,

3

The intention of the drafters appears perfectly plain: gaps left in the

regulation of international air carriage would be filled in by subsequent

agreements. This point was made in a request by the French delegation

to the conference:

Considering that the Warsaw Convention provides only for certain

difficulties relating to air carriage and that international air naviga-

tion 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 Government, which has

taken the initiative of the convening of these confereaces, that there

be convened subsequently, new conferences which will pursue the

work of unification.

Minutes, supra, at 182.

=

Oe eee

eee

2la

247-48 (E.D. Mo. 1994) (same); Rolnick, 551 F. Supp. at

264 (same). Were we to read Article 17 to provide the

exclusive remedy for personal injury, a carrier would not

be liable for injuries caused by the malfunctioning of an

escalator, notwithstanding the fact that it may have reck-

lessly disregarded its duty to keep it in proper repair.

Beyond the inequity of forcing the passenger to bear the

cost of an airline’s negligence, safeguarding an airline

from this sort of liability removes the incentive for it to

maintain its premises properly—an important goal of

domestic tort law. See W. Page Keeton et al., Prosser

and Keeton on the Law of Torts § 4, at 25 (Sth ed. 1984)

(“When the decisions of the courts become known. and

defendants realize that they may be held liable, there is

of course a strong incentive to prevent the occurrence of

the harm.”); cf. Day, 528 F.2d at 34 (airlines are in bet-

ter position to assess risks and prevent accidents).

The second argument advanced in support of holding

the Convention wholly exclusive is that permitting state

law claims under any circumstances contravenes the

Convention’s goal of uniformity. See Potter, 98 F.3d at

885. This argument is flawed in two respects. First,

while uniformity is certainly one of the two primary

goals of the Convention, such a goal has not always been

found feasible in all areas of international travel. Sec-

ond, even where possible, uniformity cannot justify

altering the operating structure of the Convention. See

Zicherman, 116 S. Ct. at 636 (rejecting application of

general maritime law to all Convention cases regardless

of whether maritime law would naturally apply). We

have read Zicherman to instruct specifically that the

Convention expresses no compelling interest in unifor-

mity that would warrant us in supplanting an otherwise

applicable body of law, here state law. See Pescatore v.

22a

Pan American World Airways, Inc., 97 F.3d 1, 11 (2d

Cir. 1996). Even to accept the argument that uniformity

should prevail where the Convention does not apply does

not support the ultimate proposition that the Convention

must therefore provide the exclusive remedy, because

uniformity could be achieved equally as well by allow-

ing recovery outside the Convention, under a uniform

body of law. Of course, once the Convention is ruled

inapplicable the carrier may, in a liability suit against it

under domestic law, interpose all the defenses available

to it under that law.

D. Passengers’ Interests

Finally, excluding state law claims where the Con-

vention does not apply is inconsistent with the Con-

vention’s goal of protecting passengers. Underlying the

desire for uniformity and limited liability for the carrier

was a desire to balance the interests of the passenger and

the carrier. See Lockerbie J, 928 F.2d at 1271. In return

for certainty and limited liability, the carriers accepted

presumed fault when the Convention applied, so that

passengers or their survivors could obtain recovery in

situations where it might be difficult to prove a carrier's

negligence. See id.

Over the past several decades, international air trans-

portation has transformed from a fragile, fledgling

industry into one that is well established and financially

secure. In recognition of the increasing strength of the

airline industry, the balance has properly shifted away

from protecting the carrier and toward protecting the

passenger, see Day, 528 F.2d at 37, evidenced by the

recent intercarrier agreement abandoning the Conven-

tion’s liability cap and imposing strict liability up to

$145,000.

23a

Reading the Convention to preclude recovery for

injuries sustained outside the_scope of the Convention

would undermine the notion of balancing the interests of

the carrier and the passenger. Under such a scheme, the

carrier would be disproportionately favored by being

absolved from liability for its tortious conduct, except

under certain limited circumstances. The passenger

would be forced to bear the cost of injury, despite the

airline being in a better position to distribute the costs of

such injuries and to prevent them from occurring. See

Keeton, Law of Torts, supra, § 4, at 24 (Tort law tends to

place the burden on the corporation, “who by means of

rates, prices, taxes or insurance are best able to dis-

tribute” risks and losses.). It is highly doubtful that such

a skewing of interests was in the contemplation of the

original drafters of the Convention, and such an inter-

pretation is clearly at odds with the current goals of the

Convention. Consequently, we hold that where the Con-

vention is inapplicable, a plaintiff may seek recourse

under state law.

CONCLUSION

We have reviewed El Al’s cross-appeal concerning the

district court’s findings and conclusions embodied in its

judgment regarding Tseng’s baggage claim and find it to

be without merit. Accordingly, the judgment is reversed

with respect to Tseng’s personal injury claim and

affirmed with respect to her baggage claim. Plaintiff’s

personal injury cause of action is remanded to the dis-

trict court, which, should it determine it proper to exer-

cise pendent jurisdiction, may then resolve Tseng’s

outstanding state law claims in accordance with this

opinion.

24a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

94 Civ. 3385 (LLS)

Tsu! YUAN TSENG,

Plaintiff,

—against—

EL AL ISRAEL AIRLINES, LTD.,

Defendant.

MEMORANDUM AND ORDER

Plaintiff Tsui Yuan Tseng claims defendant El Al Israel Air-

lines, Ltd. (“El Al”), which searched her person and bags as

she was boarding a flight, subjected her to assault, false

imprisonment, physical and mental abuse and humiliation,

and the loss of and damage to her property.

The case was tried to the court on March 7, 8, and 11, 1996.

From my observation of the witnesses and exhibits, I find the

preponderance of the credible evidence establishes the fol-

lowing facts. All Agreed Findings in the Consent Pretrial

Order are found as facts, and are supplemented by the find-

ings below.

FACTS

On May 22, 1993, Ms. Tseng went to El Al's terminal at

John F. Kennedy International Airport in Queens, New York

to take a flight to Tel Aviv. While awaiting check-in she was

queried about her reasons for the trip, asked to wait, and then

25a

taken to a small room with a few chairs and a table, where she

was searched.

At the instruction of a uniformed man and woman, she put

her luggage (a suitcase, a carry-on bag and her purse) on the

table and unlocked it. The man and woman took out the con-

tents of her luggage and put-her things into small baskets,

which they took into another room into which she was not

allowed to follow.

The woman then told Ms. Tseng to take off her jacket,

Sweater, shoes, and belt, and to loosen and lower her blue

jeans to just below her hip. The woman proceeded to search

her, first by feeling her body by hand outside her clothes from

head to toe, and then with an electronic security wand.

After an hour or so, they stuffed her things messily back

into her luggage. She was then escorted to her plane. They

told her to leave her suitcase there, and that it would be put

on the plane.

During the flight, she felt sick, upset, and nervous, and had

a headache. She glanced a few times in her carry-on bag, but

its contents were so disorganized that she could not find any-

thing.

At her hotel in Tel Aviv, she opened her suitcase, carry-on

bag, and purse. She sorted through the messy contents and

discovered that many of her clothes were stained and dam-

aged, and that several items were missing, including a Rolex

watch, a jade ring, some of her clothes, and a thousand dollars

in cash. She called El Al’s office in Tel Aviv, and was told

that they could not do anything about the losses in Israel and

to wait until she was back in the United States and then report

them.

She returned to the United States on or about June 20,

1994. Around the end of June, she went to see her doctor for

treatment of headaches, upset stomach, ringing in her ears,

nervousness and sleeplessness, all of which had bothered her

since she was searched. She also brought to El Al, in person,

a letter dated July 1, 1994, complaining about her search and

detention and listing the items that were missing and dam-

aged.

26a

El Al claims she was searched because her reasons for her

trip appeared “illogical,” but it is unable (for lack of memory

’ and records) to specify how. It urges, and I accept, that the

actual method of search of her person conformed to their

usual practice.

DISCUSSION

A. BODILY INJURY

The parties dispute whether the Warsaw Convention applies

to plaintiff's claims that she suffered injury as a result of her

detention and search by El Al. In particular, they dispute

whether her claimed injuries resulted from an “accident”

within the meaning of Article 17 of the Convention, which

states:

The carrier shall be liable for damage sustained in the

event of the death or wounding of a passenger or any

other bodily injury suffered by a passenger, if the acci-

dent which caused the damage so sustained took place on

board the aircraft or in the course of any of the opera-

tions of embarking or disembarking.

Air France v. Saks, 470 U.S. 392, 105 S. Ct. 1338 (1985),

dealt with the definition of “accident” in Article 17. The

Supreme Court concluded that “liability under Article 17 of

the Warsaw Convention arises only if a passenger's injury 1s

caused by an unexpected or unusual event or happening that

is external to the passenger,” and stated further that “This def-

inition should be flexibly applied after assessment of all the

circumstances surrounding a passenger's injuries.” 470 U.S.

at 405, 105 S. Ct. at 1345. In Shen v. Japan Airlines, 1994

WL 167989 (S.D.N.Y.), aff'd, 43 F.3d 1459 (2d Cir. 1994),

this court applied the Warsaw Convention to the detention,

search, and confinement of passengers by Japan Airlines.

Id. at *2.

27a

Plaintiff argues that El Al's actions were not an “accident”

but wilful misconduct, and therefore not covered by the

Convention.

The record in this case does not support the proposition that

the search of the plaintiff was wilful misconduct. The actual

techniques for carrying out the search were those prescribed

by El Al’s procedures, and are reasonable in light of the need

for discovering small dangerous objects, if the prospective

passenger appears to pose a threat.

There is no evidence that the plaintiff actually posed such

a threat, and there is no evidence explaining why she was

selected to be searched. Although El Al’s records state that

her story was illogical, no reason is given why El Al per-

sonnel thought so.

It may have been a mistake. There may have appeared a

basis for El Al’s suspicions, although they ultimately proved

groundless. However, there is no evidence and no basis for

inferring that it was anything more than a mistake. Even if

such a mistake can be characterized as misconduct, there is

no basis for inferring that it was wilful. Accordingly, I find

that it was not such wilful misconduct as might take the

case outside the Convention's limitations of liability under

Article 25.'

Occasional personal searches are recognized incidents of

international air travel. The evidence shows that they occur

two to four times a day at El Al alone, which averages over

1,000 times per year for that single airline.

Using the flexible application prescribed by the Supreme

Court, such a routine search, applied erroneously to plaintiff

in the course of embarking on the aircraft, is fairly accurately

The Convention, in Article 25(1), provides:

The carrier shall not be entitled to avail himself of the provisions of

this convention which exclude or limit his liability, if the damage

is caused by his wilful misconduct or by such default on his part as.

in accordance with the law of the court to which the case is sub-

mitted, is considered to be equivalent to wilful misconduct.

28a

characterized as an accident; that is to say, an unexpected or

unusual event or happening external to the passenger.

Accordingly, the Warsaw Convention applies.

Under the Convention, the case is governed by Eastern Air-

lines, Inc. v. Floyd, 499 U.S. 530, 111 S. Ct. 1489 (1991), in

which the Supreme Court squarely considered and squarely

disallowed any recovery for psychic or psychosomatic injury

unaccompanied by bodily injury. 499 U.S. at §52, 111 S. Ct.

at 1502.

Here, the plaintiff sustained no bodily injury. Her body was

not injured by the woman who searched her by feeling the

surface of her body outside her clothing with her hands, and

by using an electronic security wand to detect metal objects.

On the contrary, all of her personal injuries are attributable to

her shock and outrage at the way she was treated. Although

her injuries may have had physical manifestations, those are

the types of psychic or psychosomatic injuries barred by

Floyd and not the “bodily injury” for which compensation is

available under Article 17 of the Convention.

The Convention precludes recovery on such claims under

state law. Article 24 of the Convention provides:

(1) In the cases covered by articles 18 and 19 any

action for damages, however founded, can only be

brought subject to the conditions and limits set out

in this convention.

(2) In the cases covered by article 17 the provisions of

the preceding paragraph shall also apply. . . .

See In re Air Disaster at Lockerbie, Scotland, 928 F.2d 1267

(2d Cir.) (“the Warsaw Convention preempts state law causes

of action arising under it”), cert. denied, 502 U.S. 920, 112

S. Ct. 331 (1991).

Accordingly, Ms. Tseng’s claims for personal injuries are

dismissed.

"B. BAGGAGE

The Convention also applies to plaintiff's claims for dam-

ages to her checked and carry-on luggage.

“With respect to checked baggage, Article 18 provides for

the strict liability of carriers for loss or damage sustained

while under the control of the carrier.” Republic National

Bank of New York v. Eastern Airlines, Inc., 815 F.2d 232, 236

(2d Cir. 1987). Ms. Tseng’s suitcase was under El Al’s control

when the items in her suitcase were lost and damaged, so

El Al is liable for that damage and loss.

For claims of damage to carry-on baggage, the Convention

imposes liability on the carrier if the damage is the result of

an accident. See Baker v. Lansdell Protective Agency, Inc.,

590 F. Supp. 165, 167 (S.D.N.Y. 1984). The items in Ms.

Tseng’s carry-on baggage were lost and damaged as the result

of the search, which was an accident, so El Al is liable for the

damage to and loss of items in that carry-on baggage.

1. Notice

The parties dispute whether El Al escapes liability for the

loss of and damage to items in plaintiff's baggage under the

Convention's requirement that plaintiff give prompt notice to

it of the loss.

Article 26 of the Convention provides, in pertinent part:

(2) In case of damage, the person entitled to delivery

must complain to the carrier forthwith after the dis-

covery of the damage, and at the latest, within 3

days from the date of receipt in the case of baggage

and 7 days from the date of receipt in the case of

goods. .

(3) Every complaint must be made in writing upon the

document of transportation or by separate notice in

writing dispatched within the times aforesaid.

Although Article 26 of the Convention on its face requires

written notice to the carrier only when there is “damage” to

30a

baggage, notice is also required when items in baggage are

lost, because “delivery of a package or container with part of

its contents missing is damage and requires notice.” Denby v.

Seaboard World Airlines, Inc., 575 F. Supp. 1134, 1141

(E.D.N.Y. 1983), rev'd on other grounds, 737 F.2d 172 (2d

Cir. 1984).

At the time of plaintiff's flight, El Al had extended the time

for passengers to give written notice to the carrier from three

days, as provided above in Article 26 of the Convention, to

seven days, as provided by Rule 55(E)(1) of El Al's tariff,

which provides in pertinent part:

No action shall lie in the case of damage to baggage

unless the person entitled to delivery complains to an

office of carrier forthwith after the discovery of the dam-

age, and at the latest, within seven (7) days from the date

of receipt... .

That tariff was approved by the Civil Aeronautics Board,

see International Passenger Rules and Fares Tariff, NTA (A)

No. 324, 9C.A.B. No. 530, Rule 55(E), and governs here. See

Tishman & Lipp, Inc. v. Delta Air Lines, 413 F.2d 1401, 1403

(2d Cir. 1969) (“Tariffs filed with the Civil Aeronautics Board

if valid, are conclusive and exclusive, and the rights and lia-

bilities between airlines and their passengers are governed

thereby”).

Ms. Tseng submitted to El Al written notice of her damage

in a letter dated July 1, 1993, which was 39 days after her

flight to Tel Aviv. There is no evidence that she submitted

written notice of the damage to El Al during the seven days

after her flight.

Article 26(4) of the Convention provides

Failing complaint within the times aforesaid, no action

shall lie against the carrier, save in the case of fraud on

his part.

3la

Accordingly, Ms. Tseng’s claims for damage to her baggage

are barred by the notice requirement of Article 26, unless

there is “fraud” on the part of El Al.

In Denby v. Seaboard World Airlines, Inc., 737 F.2d 172 (2d

Cir. 1984), the Second Circuit stated that the fraud exception

“ “is not of a restrictive nature,’ ” but includes “any inten-

tional acts by the carrier or its agents which significantly

decrease the likelihood of the shipper’s giving notice during

the brief period allowed.” 737 F.2d at 183 (quoting N. Matte,

Treatise on Air-Aeronautical Law 425 (1981)).

Ms. Tseng, after discovering at her hotel that items in her

baggage were damaged and missing, promptly made a tele-

phone call to El Al. An agent of El Al told her that they could

not do anything about it and that she should talk to them back

in the United States. That statement by El Al “significantly

decreased the likelihood” that she would give written notice

of her damage to El Al during the brief period allowed.

Accordingly, the fraud exception to the notice requirement

applies in this case, and the notice requirement does not bar

her claim for damage to her baggage.

2. Liability Limitations

Article 22(1) of the Convention limits the liability of a car-

rier for checked baggage “to a sum of 250 francs per kilo-

gram”, unless the passenger has made “a special declaration

of value” of the baggage at the time it was delivered to the air

carrier and “has paid a supplementary sum if the case so

requires.” By Order of the Civil Aeronautics Board this limit

of liability has been converted to $20.00 per kilogram, or

$9.07 per pound. See C.A.B. Order 74-1-16, 39 Fed. Reg.

1526 (1974).

There has been no evidence showing how much Ms. Tseng’s

suitcase weighed. Where the weight of a passenger's baggage

is not noted on the baggage check, the weight may be based

on the maximum allowable weight as set forth in the airline's

tariff. Republic National Bank v. Eastern Airlines, 639

32a

F. Supp. 1410, 1411 (S.D.N.Y. 1986), aff'd, 815 F.2d 232 (2d

Cir. 1987).

At the time of Ms. Tseng’s flight, Rule 115(Q) of El Al's

tariff provided:

(1) No article will be accepted for transportation

if it exceeds the following maximum quantity/size/

weight:

(a) If the maximum outside linear dimensions

exceed 80 inches or if the article weighs more

than 70 pounds (32 kilograms).

That tariff was approved by the Civil Aeronautics Board. See

International Passenger Rules and Fares Tariff, NTA (A) No.

324, 9C.A.B. No. 530, Rule 115(Q). Because the maximum

weight of any article cf baggage that Ms. Tseng could have

checked with El Al is 70 pounds, El Al’s liability for her

checked suitcase is limited to $9.07 per pound times 70

pounds, which is $634.90.

The Convention, in Article 22(3), also limits El Al’s lia-

bility for “objects of which the passenger takes charge him-

self’—that is, unchecked or carry-on luggage—to “a sum of

5,000 francs per passenger.” Because the Civil Aeronautics

Board has converted 250 francs to 20 dollars, see C.A.B.

Order 74-1-16, 39 Fed. Reg. 1526 (1974), 5,000 francs is con-

verted to 400 dollars.

Therefore, the Convention limits’? El Al’s liability for the

damage sustained to the plaintiff's baggage to $634.90 for her

checked baggage and $400.00 for her unchecked baggage.

The evidence shows that the monetary value of the damage to

and loss of items in her checked and unchecked baggage,

é The evidence does not establish that the loss of and damage to the

items in plaintiff's luggage constituted such willful misconduct as might take

the case outside the Convention's limitations of liability under Article 25. See

Chukwuma v. Groupe Air France, Inc., 767 F. Supp. 43, 48 (S.D.N.Y. 1991)

(to presume willful misconduct “solely on the basis of the fact that some of

his luggage was lost or stolen” is “a presumption that would severely under-

cut Article 22’s limitation of liability”), aff'd, 962 F.2d 2 (2d Cir. 1992).

33a

respectively, exceeded those amounts. Accordingly, plaintiff

is entitled to recover for the damage to her baggage in the

amount of $1034.90.

CONCLUSION

Because the Warsaw Convention precludes recovery for

emotional injury or for the physical manifestations of such

injury, plaintiff's claims seeking such recovery are dismissed.

For her claims of damage to and loss of items in her bag-

gage, plaintiff is entitled to damages in the amount of

$1034.90, plus prejudgment interest according to law.

The Clerk is directed to enter judgment accordingly. So

ordered.

Dated: New York, New York

March 13, 1996

Louis L. STANTON

Louis L. STANTON

U.S.D.J.

—

34a

HOUSE OF LORDS

ON 12 DECEMBER 1996

ABNETT (KNOWN AS SYKES)

(APPELLANT)

—Y—

BRITISH AIRWAYS PLC

(RESPONDENTS) (SCOTLAND)

SIDHU AND OTHERS (A.P.)

(APPELLANTS)

—

BRITISH AIRWAYS PLC

(RESPONDENTS)

Lord Browne-Wilkinson, Lord Jauncey of Tullichettle,

Lord Mustill, Lord Steyn, Lord Hope of Craighead

OPINIONS OF THE LORDS OF APPEAL FOR

JUDGMENT IN THE CAUSE

LoRD BROWNE-WILKINSON

My Lords,

For the reasons given in the speech to be delivered by my

noble and learned friend, Lord Hope of Craighead, which I

35a

have read in draft and with which I agree, I would dismiss

both these appeals.

LORD JAUNCEY OF TULLICHEITLE

My Lords,

For the reasons given in the speech to be delivered by my

noble and learned friend, Lord Hope of Craighead, which I

have read in draft and with which I agree, I too would dismiss

both these appeals.

LORD MUSTILL

My Lords,

For the reasons given in the speech to be delivered by my

noble and learned friend, Lord Hope of Craighead, which I

have read in draft and with which I agree, I too would dismiss

both these appeals.

LORD STEYN

My Lords,

For the reasons given in the speech to be delivered by my

noble and learned friend, Lord Hope of Craighead, which I

have read in draft and with which I agree, I would dismiss

both these appeals.

LORD HOPE OF CRAIGHEAD

My Lords,

The question in these two appeals is whether the Warsaw

Convention as amended at The Hague, 1955, as set out in the

Schedule | to the Carriage by Air Act 1961, provides the

exclusive cause of action and sole remedy for a passenger

who claims against the carrier for loss, injury and damage

sustained in the course of, or arising out of, international car-

riage by air.

In both cases claims were made against the respondents,

British Airways Plc., by passengers who had been travelling

on a scheduled international flight from the United Kingdom

to Malaysia via Kuwait. The flight left London Heathrow for

36a

Kuala Lumpur on | August 1990. It landed in Kuwait for

refuelling on 2 August 1990, about five hours after Iraqi

forces had begun to invade Kuwait at the commencement of

what became known as the Gulf War. The passengers and

crew were all taken prisoner by the Iraqis. They were

detained initially at Kuwait Airport, then at Kuwait City and

thereafter in Baghdad. The appellants, who were subsequently

released and returned to the United Kingdom, claimed dam-

ages against the respondents for the consequences of their

captivity. Their claims for personai injury were made at com-

mon law, as it was accepted that they had no remedy in this

regard under article 17 of the Convention.

Mrs. Judith Helen Abnett, to whom I shall refer as “the pur-

suer.” raised her action in the Court of Session in Scotland.

She was resident in England where the respondent's principal

place of business is situated. and she had purchased her ticket

there. But the respondents also have a place of business in

Edinburgh, which the pursuer contended was sufficient to

confer jurisdiction on the Scottish courts at common law. She

based her claim on article 19 of the Convention under which

the carrier is liable for damage occasioned by delay and,

alternatively, at common law for breach of an implied con-

dition of the contract that the respondents would take rea-

sonable care for her safety. When the case came before the

Lord Ordinary, Lord Marnoch, for debate on the procedure

roll he was invited to dismiss the action on various grounds.

One of these was that the Scottish courts had no jurisdiction,

having regard to article 28 of the Convention. After a careful

review of the wording of that article and of various authori-

ties which were cited to him from the United States of Amer-

ica, France and Nigeria, he held that the Scottish courts did

have jurisdiction and no appeal has been taken against his

decision on this point. He also held that the pursuer’s case for

damage occasioned by delay under article 19 of the Conven-

tion was irrelevant, and that the Convention excluded

recourse to any common law remedy by a passenger who suf-

fered injury in the course of or arising out of an international

flight. On 20 December 1993 he repelled the respondents’

37a

plea in law to the jurisdiction of the Court of Session, but he

sustained their second and third pleas in law and dismissed

the action as irrelevant, 1996 S.L.T. 529. The pursuer

reclaimed on the single question as to whether her claim at

common law had been excluded by the Convention. On 28

April 1995 an Extra Division (Lord Allanbridge, Lord May-

field and Lord Clyde), who had the advantage of the judgment

of the Court of Appeal in the English action which supported

the view which had been taken by Lord Marnoch, refused her

reclaiming motion: 1996 S.L.T. 529, 538-547. The pursuer

has now appealed against this decision to your Lordships’

House.

Miss Kiran Sidhu, Miss Harjinder Sidhu and Mr. Ravinder

Sidhu, to whom I shall refer as “the plaintiffs,” raised their

action in the Brentford County Court. In their particulars of

claim they alleged that the loss and damage which they had

suffered was caused by the respondent's negligence. Their

proceedings were issued on 30 July 1993, which was outside

the two year time limit allowed by article 29 of the Conven-

tion but inside the three year time limit which was otherwise

applicable. No claim was made by them under any of the pro-

visions of the Convention: The respondents applied for an

order that their action be dismissed as it was time barred by

article 29. When their application came before Judge Marcus

Edwards they also submitted that the Convention provided the

exclusive remedy in respect of claims for damages arising out

of international carriage by air of persons and baggage for

reward. On 28 February 1994 the judge, who was referred to

Lord Marnoch’s decision in the pursuer’s case, held for the

Same reasons as those given by Lord Marnoch that the plain-

tiffs had no rights save under the Convention. He also held

that their right to damages, if any, was extinguished by arti-

cle 29 of the Convention two years after 2 August 1990, and

he dismissed their claims. On 27 January 1995 the Court of

Appeal (Leggatt, Swinton Thomas and Otton L.JJ.) (unre-

ported), Court of Appeal (Civil Division) Transcript No. of

1995, dismissed the plaintiffs’ appeal against the order which

had been made by Judge Marcus Edwards. The plaintiffs’

38a

appeal to this House against the order made by the Court of

Appeal was heard together with the pursuer’s appeal against

the interlocutor of the Extra Division of the Court of Session.

THE FACTS

The pursuer and the plaintiffs were all fare paying pas-

sengers on the same flight, BA.149, which left London

Heathrow for Kuala Lumpur at about 6.15 p.m. on | August

1990. The flight was scheduled to travel to Kuala Lumpur by

way of Kuwait and Madras. It was due to arrive at Kuwait in

the early hours of the following day, 2 August 1990. Accord-

ing to the pusuer’s pleadings in the Scottish action, relations

between Iraq and Kuwait had been deteriorating for some

days prior to the departure of the flight from Heathrow. She

avers that the respondents knew or ought to have known that

the passengers would be at severe risk if the aircraft were to

land in Kuwait after hostilities had been commenced against

Kuwait by Iraq. The same point is made by the plaintiffs in

their particulars of claim, where they refer to the respondents’

negligence in landing their aeroplane in Kuwait when they

knew or ought to have known of the hostile situation between

Iraq and Kuwait and the possibility that war might break out

and Kuwait be invaded by Iraq. In the event the invasion of

Kuwait by Iraq began at about 11.15 p.m. on | August 1990.

About four hours later, at about 3.00 a.m. on 2 August 1990,

the respondents’ aircraft landed at Kuwait airport for

refuelling. The passenger. »«scmbarked into the transit lounge

at the airport terminal. While they were in the terminal the

airport was attacked by Iraqi aircraft and taken over by Iraqi

soldiers. The airport was closed, and the passengers and crew

of flight BA.149 were detained by the Iraqis and later

removed to Baghdad.

The pusuer avers that she was detained by Iraqi forces for

a period of about a month. She claims to have suffered psy-

chological injury due to the stress resulting from her captiv-

ity and the pain of separation from her family. She also claims

that she was off work on a number of occasions as a result of

the psychological consequences. She claims damages of

39a

£100,000 on the ground that the respondents were in breach

of an implied condition of her contract with them that they

would take reasonable care for the safety of their passengers,

in respect that they allowed their aircraft to land at Kuwait

when they knew or ought to have known that the passengers

were exposed to risk due to the invasion. Her alternative

claim for damages caused by delay under article 19 of the

Convention was, as I have said, held by Lord Marnoch to be

irrelevant and no further issue arises on that point. She made

no claim against the respondents under article 17 of the

Convention.

The plaintiffs state that they were detained by the Iraqi

forces until about 21 August 1990. In their particulars of

injuries they allege that they suffered physical and psycho-

logical injuries. These included mental injury comprising

stress and anxiety and poss*ble permanent psychological dam-

age as a result, and bodily injury comprising loss of weight,

eczema and excessive menstrual bleeding. They also claim for

loss of baggage amounting to £2,562.93 as special damages.

Their action has been based entirely on negligence at common

law. The negligence relied on in their particulars falls under

three heads: landing their aircraft in Kuwait when the respon-

dents knew or ought to have known of the hostile situation

between Kuwait and Iraq and the possibility that war might

break out and Kuwait be invaded; flying their aircraft into a

war zone or war Situation; and failing to divert their aircraft

to a safer airport for refuelling when they knew or ought to

have known that Kuwait airport was at risk of being attacked

or invaded. They make no claim against the respondents under

article 17 of the Convention.

THE ISSUE

Although there are some differences of detail between the

two actions—the pursuer claims only for psychological injury,

while the plaintiffs claim also for bodily injury and loss of

baggage, and the pursuer’s claim is for breach of contract

while the plaintiffs’ claim is in negligence—the issue of law

which arises in both of these appeals is the same. It is whether

40a

the Warsaw Convention as amended at The Hague, 1955 pro-

vides the exclusive cause of action and remedy in respect of

claims for loss, injury and damage sustained in the course of,

or arising out of, international carriage by air. If the answer to

that question is in the affirmative, it is accepted that the

claims which have been brought in each case for damages at

common law for personal injury must be dismissed. It is not

disputed that the plaintiffs’ claim for loss of baggage must be

dismissed also, on the additional ground that it was brought

outwith the period of two years referred.to in ar‘icle 29 of the

Convention after which the right to damages under the Con-

vention is extinguished. It is common ground, for reasons to

which I shall return later, that neither the pursuer nor the

plaintiffs have any claim against the respondents under arti-

cle 17 of the Convention in respect of their personal injuries.

THE PROVISIONS OF THE CONVENTION

I shall have something to say later about the background to

the Convention. At this stage it 1s necessary to identify the

statutory provisions which are relevant to this case. These are

to be found in the Carriage by Air Act 1961, by which effect

was given to the Convention concerning international carriage

by air known as “The Warsaw Convention as Amended at The

Hague, 1955,” so that it might have the force of law in the

United Kingdom in relation to any carriage by air to which

the Convention applied, and the rules contained in the Con-

vention were enabled to be applied, with or without modifi-

cation, in other cases and in particular to non-international

carriage by air not governed by the Convention. Force of law

to the Convention in regard to international carriage by air is

given by section 1(1) of the Act read together with Schedule

1, in which the provisions of the Convention are set out. Part

I of the Schedule sets out the English text of the Convention,

and Part II sets out the French text. Section 1(2) provides

that, if there is an inconsistency between the text in English

and Part I of Schedule | and the text in French in Part II of

that Schedule, the text in French shall prevail.

4la

The headnote to the English text in Part I of Schedule |

describes the Convention as being “for the Unification of Cer-

tain Rules relating to International Carriage by Air.” There

then follow five chapters, headed respectively Chapter I—

“Scope—Definitions;” Chapter II—“Documents of Carriage;”

Chapter I1I—“Liability of the Carrier;” Chapter 1V—“Pro-

visions Relating to Combined Carriage;” and Chapter V—

“General and Final Provisions.”

In Chapter I, article 1(1) is in these terms:

“(1) This Convention applies to all international carriage

of persons, baggage or cargo performed by aircraft for

reward. It applies equally to gratuitous carriage by air-

craft performed by an air transport undertaking.”

Article 1(2) of this chapter contains a definition of the expres-

sion “international carriage” which need not be quoted, as it

is common ground that the present case is concerned with

international carriage by air because the place of departure

and the place of destination were both situated within the ter-

ritories of High Contracting Parties.

Among the documents of carriage for which rules are pro-

vided by Chapter II is the passenger ticket. Article 3(1) of

section | of this chapter is in these terms:

“(1) In respect of the carriage of passengers a ticket

shall be delivered containing:

(a) an indication of the places of departure and des-

tination;

(b) if the places of departure and destination are

within the territory of a single High Contracting Party,

one or more agreed stopping places being within the ter-

ritory of another State, an indication of at least one such

stopping place;

(c) a notice to the effect that, if the passenger’s jour-

ney involves an ultimate destination or stop in a country

other than the country of departure, the Warsaw Con-

vention may be applicable and that the Convention gov-

erns and in most cases limits the liability of carriers for

42a

death or personal injury and in respect of loss of or dam-

age to baggage.”

The only other chapter which contains provisions relevant

to this case is Chapter III, which is headed “Liability of the

Carrier.” The articles comprised in this chapter are those

numbered from 17 to 30, of which the following is a brief

summary. Article 17 is concerned with the carrier's liability

for death or injury suffered by a passenger. Article 18 is con-

cerned with the carrier's liability for destruction or loss of or

damage to registered baggage or cargo. Article 19 provides

that the carrier is liable for damage occasioned by delay in the

carriage by air of passengers, baggage or cargo. These pro-

visions must be read together with article 24, which provides

that. in the cases covered by these articles, any action for

damages, however founded, can only be brought subject to the

conditions and limits set out in the Convention. Article 20

provides: “The carrier is not liable if he proves that he and his

servants or agents have taken all necessary measures to avoid

the damage or that it was impossible for him or them to take

such measures.” Article 21 deals with cases where the dam-

age was caused or contributed to by the injured person's neg-

ligence. Article 22 makes provision for the limitation of the

liability of the carrier for each passenger and for registered

baggage and cargo, and article 23 provides: “Any provision

tending to relieve the carrier of liability or to fix a lower limit

than that which is laid down by the Convention shall be null

and void. . . .” Article 25 provides that these limits of lia-

bility shall not apply if the damage results from an act or

omission of the carrier, his servants or agents done with intent

to cause damage or recklessly. Article 25, 25A, 26 and 27

contain various ancillary provisions. Article 28, which deals

with jurisdiction, restricts the places where an action for dam-

ages may be brought, and provides that “questions of proce-

dure shall be governed by the law of the court seised of the

case.” Article 29 provides that the right to damages shall be

extinguished if the action is not brought within two years.

43a

Lastly, article 30 deals with the case where the Cafriage is to

be performed by various successive carriers.

As I shall require to examine the wording of articles 17, 18,

23 and 24 more closely at a later Stage, it is convenient now

to set out the full terms of these articles. They are as follows:

Article 17:

“The carrier is liable for damage sustained in the event

of the death or wounding of a passenger or any other

bodily injury suffered by a passenger, if the accident

which caused the damage so sustained took place on

board the aircraft or in the course of any of the opera-

tions of embarking or disembarking.”

Article 18:

“(1) The carrier is liable for damage sustained in the

event of the destruction or loss of, or of damage to, any

registered baggage or any cargo, if the occurrence which

caused the damage so sustained took place during the

Carriage by air.

(2) The carriage by air within the meaning of the pre-

ceding paragraph comprises the period during which the

baggage or cargo is in charge of the carrier, whether in

an aerodrome or on board an aircraft, or, in the case of a

landing outside an aerodrome, in any place whatsoever.

(3) The period of the carriage by air does not extend

to any carriage by land, by sea or by river performed

outside an aerodrome. If, however, such a Carriage takes

place in the performance of a contract for carriage by air,

for the purpose of loading, delivery or transshipment,

any damage is presumed, subject to proof to the contrary,

to have been the result of an event which took place dur-

ing the carriage by air.”

Article 23:

“(1) Any provision tending to relieve the carrier of lia-

bility or to fix a lower limit than that which is laid down

in this Convention shall be null and void, but the nullity

44a

of any such provision does not involve the nullity of the

whole contract, which shall remain subject to the pro-

visions of this Convention.

(2) Paragraph (1) of this article shall not apply to pro-

visions governing loss or damage resulting from the

inherent defect, quality or vice of the cargo carried.”

Article 24:

“(1) In the cases covered by articles 18 and 19 any

action for damages, however founded, can only be

brought subject to the conditions and limits set out in

this Convention.

(2) In the cases covered by article 17 the provisions of

the preceding paragraph 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.”

THE COMPETING ARGUMENTS

The issue between the parties is confined to a single but

important point which depends for its answer on the inter-

pretation of the Convention. Much of the background is com-

mon ground. As both cases are being dealt with on a

preliminary issue of law, the facts have not been investigated.

The respondents made it clear that they were not to be taken

as admitting that all the allegations which have been made

against them are true. But they were content that the issue of

law should be dealt with on the pursuer’s pleadings in the

Scottish action and on the particulars of claim in the English

action. For their part the pursuer and the plaintiffs accept that

their claims against the respondents arise out of international

carriage by air. Their apprehension by the Iraqis took place in

the terminal at Kuwait, but they accept that they were still in

the course of international carriage by air at that point

because they were still in transit to their ultimate destination

in Malaysia. The breaches of duty which they allege all relate

to decisions taken while the aircraft was in the air between

London and Kuwait. It is, however, also common ground

45a

between the parties that neither the pursuer nor the plaintiffs

have a claim against the respondents under article 17 of the

Convention.

I do not think that it is necessary to explore the reasons

why the view has been taken that article 17 does not provide

a remedy in this case. It is sufficient to say that two particu-

lar reasons were given for this view in the course of the hear-

ing before the Inner House in the Court of Session. First, it

was said that no “accident” causing the damage took place on

board the aircraft. Secondly, it was said that the injury sus-

tained by the pursuer—the stress resulting from her captivity

and the pain of separation from her family, absence from

work and loss of income due to the psychological conse-

quences of the captivity—did not fall within the scope of

“bodily injury” for the purposes of article 17. In the English

action the plaintiffs conceded in the Court of Appeal that no

accident causing damage took place on board the aircraft or

in the course of disembarkation. In their case bodily injury is

alleged, but it was submitted on their behalf that liability for

damage to the person under article 17 only arises in the event

of any bodily injury suffered by a passenger and that psy-

chological damage, which was the principal basis for their

claim, probably did not come within that category. It was sug-

gested to your Lordships in the course of the argument that

the phrase “bodily injury” in article 17 ought now to be con-

strued as including psychological damage, especially if it

were shown to have a physiological basis by medical evi-

dence. But that point does not arise for decision in this case

and it was not fully argued. I prefer to express no opinion

upon it.

It should be recorded also that all parties were agreed that,

if a passenger had a claim under article 17 against the carrier,

there was no concurrent common law remedy. It is common

ground therefore that a passenger who has a claim for bodily

injury caused by an accident which took place on board the

aircraft, or in the course of any of the operations of embark-

ing or disembarking, cannot maintain a separate claim at com-

mon law for any loss, injury or damage not covered by article

46a

17 of the Convention. That seems to follow inevitably from

the provisions of article 24(2), which declares that in the

cases covered by article 17 any action of damages, however

founded, can only be brought subject to the conditions and

limits set by the Convention.

So the stark issue which is before us in this appeal is

whether a passenger who has sustained damage in the course

of international carriage by air due to the fault of the carrier,

but who has no claim against the carrier under article 17 of

the Convention, is left without a remedy.

THE APPROACH TO CONSTRUCTION

I now turn to the material which we were invited to con-

sider in reaching our decision as to how we should decide this

issue. Some of this material is plainly relevant, some of it

plainly is not and some of it will require consideration and

analysis in order to decide whether it is of any assistance to

us in this case. The following catalogue provides the starting

point.

(i) THE CARRIAGE BY AIR ACT 1961 .

Mr. Webb took us through various provisions in the statute

which he said could be relied on as indicating that the inten-

tion was that the Convention should provide the exclusive

remedy. Similar arguments were considered in the courts

below. For my part I do not think that the wording of the

statute Can assist us one way or the other. What we are con-

cerned with in this case is the meaning to be given to the Con-

vention. This must depend upon the wording and structure of

the Convention itself. All that need to be taken from the Act

for present purposes is that, in terms of section 1(1), the Con-

vention as set out in Schedule | to the Act has the force of

law in the United Kingdom in relation to any carriage by air

to which the Convention applies; and that, in terms of section

1(2), if there is any inconsistency between the text in English

in Part | of Schedule | and the text in French in Part II of that

Schedule, the text in French shall prevail.

47a

(ii) THE ENGLISH TEXT OF THE CONVENTION

This plainly is the primary source to which we must turn

for a solution to the point raised in this case. It may be con-

venient, however, to record at this point that all parties were

agreed, as they were in the courts below, that the Convention

should receive a purposive construction. This point was fully

explored in Fothergill v. Monarch Airlines Ltd. [1981] A.c.

251, where the question at issue arose under article 26(2) of

the Convention. It does not need to be elaborated upon in this

case. It is now well established that a purposive approach

Should be taken to the interpretation of international con-

ventions which have the force of law in this country. As Lord

Diplock said, at p. 279, one must give a purposive construc-

tion to the Convention looked at as a whole. The observations

of Greene L.J. in Grein v. Imperial Airways Ltd. [1937] 1

K.B. 50, 74-76, to which I shall return later, are to the same

effect.

(iii) THE TRAVAUX PREPARATOIRES

Here again the parties were in agreement. Reference was

made in the courts below to the negotiating history of the

Convention, and in particular to the minutes of the Interna-

tional Conference on Private Aeronautical Law at Warsaw

from 4 to 12 October 1929. We also were referred to various

passages from these minutes in the course of the argument.

The question whether it is legitimate to resort to material of

this kind was discussed in Fothergill v. Monarch Airlines

Ltd., and it is unnecessary to go over this ground again. It is

sufficient to say that cautious use may be made of this mate-

rial, the availability to the public of which is not in doubt. But

it will only be helpful if, after Proper analysis, it clearly

points to a definite intention on the part of the delegates as to

how the point at issue should be resolved.

48a

(iv) DECISIONS BY THE COURTS IN THE UNITED

KINGDOM

The only cases to which we were referred as having any

possible bearing on the issue which we have to decide in this

case were Grein v. Imperial Airways Ltd. [1937] 1 K.B. 50,

74-76 and Gatewhite v. Iberia Lineas Aereas de Espafia S.A.

[1990] | Q.B. 326. The issue which was raised in Grein v.

Imperial Airways Ltd. was a different one from that which

arises here. It was whether a passenger who met his death

while travelling by aeroplane on a return ticket between Lon-

don and Antwerp—Belgium not being a High Contracting

Party—was engaged on “international carriage” within the

meaning of the Convention. But Greene L.J., at pp. 74-76,

made some observations about the approach to be taken to the

construction of the Convention which are helpful in the pre-

sent case. The Gatewhite case arose out of a contract for the

carriage of goods by air. The question was whether the owner

of goods not named as the consignor or consignee on the air

waybill was entitled to sue the carrier for damages to the

goods while in transit. I shall return to this case later in order

to see what help it can give to us in the present case.

(v) DECISIONS BY FOREIGN COURTS

Much of the discussion in the Court of Session, both in the

Outer House before the Lord Ordinary, Lord Marnoch, and in

the Extra Division, was taken up with an examination of deci-

sions of various courts in the United States. We were referred

to the cases mentioned in the courts below and to several

other cases from the same source. We were also referred to a

recent decision in the Tribunal de Grande Instance de Paris

arising out of the same incident as the claims which are being

made in the present case. Parties were agreed that we might

have regard to this material for such assistance as it might

give. Clearly, much must depend upon the status of each court

and of the extent to which the point of issue has been sub-

jected to careful analysis. Material of this kind, where it is

found to be of the appropriate standing and quality, may be of

some help in pointing towards an interpretation of the Con-

a i a aa

49a

vention which has received general acceptance in other coun-

tries. But the value of the material will be reduced if the deci-

sions conflict with each other or if no clear line of approach

appears from them after they have been analysed.

(vi) EUROPEAN CONVENTION OF HUMAN RIGHTS

Mr. Clive Nicholls for the plaintiffs submitted that it would

be inconsistent with the obligations of the United Kingdom

under various articles of the European Convention of Human

Rights if a construction were to be placed on article 17 of the

Warsaw Convention which excluded the claim which they

were seeking to make in this case. Your Lordships had no hes-

itation in rejecting that argument. The provisions of the Euro-

pean Convention have no bearing on the interpretation of

international conventions such as the Warsaw Convention on

carriage by air—and there are many other examples—which

are concerned with commerce between countries and which

seek, by a process of compromise, to achieve uniformity

across international frontiers in the application of trade law.

It must also be observed that, while some parties to the

Warsaw C onvention are parties to the European Convention

of Human Rights, some—notably the United States of Amer-

ica—are not. We cannot assume that the principles expressed

in the European Convention are common to all those countries

who are parties to the Warsaw Convention. Thus we would

risk introducing an element of distortion into the debate, in

conflict with the broad aim of uniformity of interpretation

between states, if we were to rely on the European Conven-

tion as an aid to the construction of the Warsaw Convention

in the present case. In T. v. Secretary of State for the Home

Department [1996] 2 W.L.R. 766, 793A. Lord Lloyd of

Berwick said that in a case concerning an international con-

vention it was obviously desirable that decisions in different

jurisdictions should, so far as possible, be kept in line with

each other. As Dicey & Morris, The Conflict of Laws, 12th

ed. (1993), p. 9, observe:

“The purpose of an international convention is to har-

monise the laws of all contracting states on the particu-

50a

lar topic dealt with by the Convention. It is therefore

very important that the interpretation of the Convention

should be the same, so far as possible, in all contracting

states.”

(vii) ANALYSIS OF THIS MATERIAL

It follows from what I have just said that no analysis is

required of the 1961 Act or of the European Convention of

Human Rights. I turn therefore immediately to the Convention

itself, which is the primary source to which we must look for

a solution to the question we have to decide.

(a) THE ENGLISH TEXT OF THE CONVENTION

I can confine myself to the English text, because all parties

were agreed that, except in one respect with which I can deal

briefly, there was for present purposes no material difference

between it and the French text.

The Convention describes itself as a “Convention for the

Unification of Certain Rules relating to International Carriage

by Air.” The phrase “Unification of Certain Rules” tells us

two things. The first, the aim of the Convention is to unify the

rules to which it applies. If this aim is to be achieved, excep-

tions to these rules should not be permitted, except where the

Convention itself provides for them. Second, the Convention

is concerned with certain rules only, not with all the rules

relating to international carriage by air. It does not purport to

provide a code which is comprehensive of all the issues that

may arise. It is a partial harmonisation, directed to the par-

ticular issues with which it deals.

These issues are identified in the principal chapter head-

ings, which are those to Chapters II, III] and I1V—“Documents

of Carriage,” “Liability of the Carrier” and “Provisions Relat-

ing to Combined Carriage.” Nothing is said in this Conven-

tion about the liability of passengers to the carrier, for

example. Nor is anything said about the carrier's obligations

of insurance, and in particular about compulsory insurance

against third party risks. It is clear from the content and struc-

Sla

ture of the Convention that it is a partial harmonisation only

of the rules relating to international Carriage by air. That is

sufficient to give content to the phrase “Certain Rules.” I do

not find in that phrase an indication that, in regard to the

issues with which the Convention does purport to deal, its

provisions were intended to be other than comprehensive.

The principal search for indications of an intention one way

or the other about exclusivity of provision in regard to the

carrier's liability must be conducted within the provisions of

Chapter III. But before I come to this chapter there are two

provisions in the earlier chapters which are worth noting as

being of some value. First, Article 1(1) states that the Con-

vention applies to “all international carriage of persons, bag-

gage or cargo performed by aircraft for reward.” The word

“all” is important, simply because it is so ali-embracing. It

indicates that the framers of the Convention were looking to

solutions, no doubt by a process of adjustment and compro-

mise, which could be regarded as acceptable for universal

application in all cases. The other provision is article 3(1)(c),

which requires that the ticket to be delivered to the passenger

must Contain among other things

“a notice to the effect that, if the Ppassenger’s journey

involves an ultimate destination or stop in a country

other than the country of departure, the Warsaw Con-

vention may be applicable and that the Convention gov-

erns and in most cases limits the liability of carriers for

death or personal injury and in respect of loss of or dam-

age to baggage.”

This provision was relied on to some extent by Lord Clyde,

1996 S.L.T. 529, 545]. He said that the words used here

would seem quite absoluteb [sic]—the qualification that the

limits apply “in most cases” presumably covering such excep-

tions as are contained in article 25, which deals with cases

where the carrier, his servants or agents have caused inten-

tional damage or acted recklessly. It is here that the French

text may be important. The relevant part of the provision is

Stated there in these terms:

52a

“(c) . . . leur transport peut étre régi par la Convention

de Varsovie qui, en général, limite la responsabilité du

transporteur en cas de mort ou de lésion corporelle, ainsi

qu’en cas de perte ou d’avarie des bagages.”

The word “governs” which is to be found in the English

text is an accurate translation of the word “régi” in the French

text. But the English version does not follow the French

wording precisely—the phrase “peut étre régi” is not, as such,

reproduced. So on balance I am inclined not to attach sig-

nificance to this provision, which in any event is dealing only

with the wording of a notice on the passenger's ticket and not

with the substance of the rules about the carrier's liability.

Turning to Chapter III itself, the chapter heading expresses

its subject matter in the words “Liability of the Carrier.” In

contrast to the title to the Convention itself, which uses the

expression “Certain Rules,” we find here a phrase which is

unqualified. My understanding of the purpose of this chapter

therefore, from what we have seen so far, is that it is designed

to set out all the rules relating to the liability of the carrier

which are to be applicable to all international carriage of per-

sons, baggage or cargo by air to which the Convention

applies.

Chapter III begins by setting out the three primary rules.

These are the rules relating to the carriage of passengers, to

the carriage of registered baggage or cargo and to delay in the

carriage by air of passengers, baggage or cargo. While article

19 is unqualified—it states simply that the carrier is liable for

damage occasioned by delay in the carriage by air—the other

two articles are qualified, because the liability which they

create applies only in the events described and only if certain

other conditions are satisfied: see articles 20 and 21. This,

however, is not in itself a reason for regarding these provi-

sions as non-exclusive remedies. One has to look further into

the details of the chapter in order to grasp the whole context

in which these carefully defined liabilities have been devised.

Articles 20 and 21 enable the carrier to avoid liability in

whole or in part. They contain nothing of significance for pre-

53a

sent purposes. Article 22 however is important, because it

limits the liability of the carrier. It does so in terms which

enable the limitation of liability to be applied generally to all

cases where the carrier is liable in the carriage of persons and

of registered baggage and cargo. Article 22(1) begins simply

with the words “In the carriage of persons.” Article 22(2)(a)

begins with the words “In the carriage of registered baggage

and of cargo.” The intention which emerges from these words

is that, unless he agrees otherwise by special contract—for

which provision is made elsewhere in the article—the carrier

can be assured that his liability to each passenger and for each

package will not exceed the sums stated in the article. This

has obvious implications for insurance by the carrier and for

the cost of his undertaking as a whole. Article 22(4) makes

provision for the award, in addition, of the whole or part of

the costs of the litigation. But this is subject to the ability of

the carrier to limit his liability for costs by an offer in writing

to the plaintiff. The effect of these rules would, I think, be

severely distorted if they could not be applied generally to all

cases in which a claim is made against the carrier.

Articles 23 and 24 also are provisions which seem to have

been designed to apply generally, and to indicate that the pos-

sibility of exceptions to the rules laid down in Chapter III was

not being contemplated. Article 23 states that any provision

tending to relieve the carrier of liability or to fix a lower limit

than that which is laid down in the Convention shall be null

and void. It then goes on to state that the nullity of any such

Provision does not involve the nullity of the whole contract,

which is to remain subject to the provisions of the Conven-

tion. The generality of effect is to be found in the opening

words, since the article applies to “any provision” which

tends to relieve the carrier of liability or to fix a lower limit

than that laid down by the Convention. I think that the

purpose of this provision is clear. It is to protect the passen-

ger or other person dealing with the carrier against provisions

of the kind which it describes. Contracting out of liability

in contracts of carriage is, of course, now widely regulated

by statute. But no doubt in the early 1920’s, when what

54a

became the Warsaw Convention was being negotiated, carri-

ers engaged in international carriage by air were free to con-

tract on whatever terms they cared to select, controlled only

by the demands of the marketplace in which they were oper-

ating. To surrender freedom of contract on this issue was an

important concession on the part of carriers, which made

sense only in the context of the entire set of rules by which

their conduct was to be regulated.

The counterpart of what was plainly a compromise is to be

found in the following article, article 24. This Article pro-

vides that in the cases covered by articles 18 and 19 and by

article 17 respectively—these cases are dealt with separately

in two different paragraphs—“any action of damages, how-

ever founded, can only be brought subject to the conditions

and limits set” by the Convention. It should be noted in pass-

ing that paragraph (2) of the article states that this rule is to

apply to the cases covered by article 17 “without prejudice to

the questions as to who are the persons who have the right to

bring suit and what are their respective rights.” As Professor

Rene H Mankiewicz has pointed out in his article, “The Judi-

cial Diversification of Uniform Private Law Conventions—

The Warsaw Convention’s Days in Court” (1972) 21 I.C.L.Q.

718, 741 no one could expect states to be prepared to amend

their laws relating to these questions, which are basic to the

laws of tort and contract and therefore of a wide reaching sig-

nificance, for the sole purpose of unifying and accommo-

dating all matters relating to the law of the air carrier's

liability.

The structure of these two provisions seems to me therefore

to be this. On the one hand the carrier surrenders his freedom

to exclude or to limit his liability. On the other hand the pas-

senger or other party to the contract is restricted in the claims

which he can bring in an action of damages by the conditions

and limits set out in the Convention. The idea that an action

of damages may be brought by a passenger against the carrier

outside the Convention in the cases covered by article 17—

which is the issue in the present case—seems to be entirely

contrary to the system which these two articles were designed

to create.

SSa

The reference in the opening words of article 24(2) to “the

cases covered by articles 17” does, of course, invite the ques-

tion whether article 17 was intended to cover only those cases

for which the carrier is liable in damages under that article.

The answer to that question may indeed be said to lie at the

heart of this case. In my opinion the answer to it is to be

found not by an exact analysis of the particular words used

but by a consideration of the whole purpose of the article. In

its context the purpose seems to me to be to prescribe the cir-

cumstances—that is to say, the only circumstances—in which

a carrier will be liable in damages to the passenger for claims

arising out of his international cariiage by air.

The phrase “the cases covered by article 17” extends there-

fore to all claims made by the passenger against the carrier

arising out of international carriage by air, other than claims

for damage to his registered baggage which must be dealt

with under article 18 and claims for delay which must be

dealt with under article 19. The words “however founded”

which appear in article 24(1) and are applied to passenger's

claims by article 24(2) support this approach. The intention

seems to be to provide a secure regime, within which the

restriction on the carrier's freedom of contract is to operate.

Benefits are given to the passenger in return, but only in

clearly defined circumstances to which the limits of liability

set out by the Convention are to apply. To permit exceptions,

whereby a passenger could sue outwith the Convention for

losses sustained in the course of international carriage by air,

would distort the whole system, even in cases for which the

Convention did not create any liability on the part of the car-

rier. Thus the purpose is to ensure that, in all questions relat-

ing to the carrier's liability, it is the provisions of the

Convention which apply and that the passenger does not have

access to any other remedies, whether under the common law

or otherwise, which may be available within the particular

country where he chooses to raise his action. The carrier does

not need to make provision for the risk of being subjected to

such remedies, because the whole matter is regulated by the

Convention.

56a

Only two other articles may be mentioned in this analysis:

articles 28 and 29. These restrict the places in which “an

action for damages” must be brought, and provide that “the

right to damages” shall be extinguished if an action is not

brought within two years. Here again it seems that a balance

has been struck in the interests of uniformity of treatment and

of certainty. I see no sign in the generality with which these

provisions have been expressed of a recognition that there

may be some actions of damages arising from the interna-

tional carriage of passengers by air which are not subject to

these rules. It would be largely destructive of the system

which this chapter seems to have been designed to lay down

if a passenger were to be able, for example, to maintain a

claim of damages for non-bodily injury, for loss of or damage

to the personal possessions which he had with him inside the

aircraft or for economic loss, outside the conditions and lim-

its set by the Convention while maintaining a claim under the

Convention for the bodily injury. No doubt it was for this rea-

son that it was conceded that, if he had a claim under article

17, the passenger would not be able to maintain any other

claim against the carrier arising out of the same incident. But

it seems to me that, by parity of reasoning, the same approach

must be taken to cases arising out of international carriage by

air where he has no claim under article 17 at all.

(b) THE TRAVAUX PREPARATOIRES

We were shown a copy, in the English translation, of the

Minutes of the Second International Conference on Private

Aeronautical Law, 4 to 12 October 1929 at Warsaw. Attached

to these minutes are copies of the documents submitted to the

conference. These comprise (a) a preliminary draft of the

Convention prepared by the International Technical Com-

mittee of Legal Aeronautical Experts (C.1.T.E.J.A.), together

with a report on the preliminary draft by Mr. Henri De Vos in

name of the committee and (b) proposals of amendments

submitted to the Warsaw Conference by a preparatory com-

mittee and by various delegations to the conference. The first

conference had been held in Paris in 1925, so the material

S7a

which was before the conference in Warsaw in 1929 was the

product of four years work by the committee.

I do not think that it would be profitable for me to attempt

to summarise this material. There are various passages in the

minutes where the delegates are recorded as expressing views

about the object of the Convention. For example, Sir Alfred

Dennis on behalf of Great Britain, said at p. 85, that the

object of the Convention was to ensure uniformity of law,

and, at p. 213, he said that what became article 24(1) touched

the very substance of the Convention because it excluded

resort to the common law. Similar observations are attributed

to the Soviet delegate, Mr. Sabanin., at p. 40 and to the French

delegate, Mr. Ripert, at p. 47. At p. 49, Mr. De Vos referred to

various questions relating to the carrier’s liability as being

connected to each other, as they constituted “the parts of a

whole which is the system of liability.” But these are mere

straws in the wind which emerged during several days of

detailed discussion to which many delegates contributed. I do

not find a sufficiently clear and consistent expression of

views here about the objects of the Convention on the point

which is at issue in this case to enable me to say that the

answer to the problem is to be found in the minutes. The most

that can be said is that I have not found anything in these

minutes or in the accompanying material which contradicts

the impression which I have already formed on reading the

Convention.

There is one particular point arising from the minutes how-

ever on which I think I should comment. It relates to the

phrase “Certain Rules” in the title to the Convention. The title

in the preliminary draft did not contain this phrase. In their

proposals, however, the delegates from Czechoslovakia had

proposed an amendment to Chapter IV of the draft to the

effect that there should be inserted in it an article which

would have provided that, in the absence of a stipulation in

the Convention, the provisions of laws and national rules

relating to carriage in each state should be applicable. The

effect of that amendment, if introduced, would have been to

enable the common law to apply when liability could not be

established under the Convention. There was a brief discus-

58a

sion of this amendment during the sixth session of the con-

ference on 9 October: see p. 176 of the minutes. When the

proposal was drawn to the attention of the delegates the head

of the Italian delegation, Mr. Giannini, said that, following a

suggestion made by the German delegation, they were going

to propose adopting as a title for the Convention the words

“Convention relating to certain rules for the unification of pri-

vate aeronautical law.” He added that, given that this title

indicated the special character of the Convention, the

Czechoslovak delegation no longer insisted on its amendment.

The Czechoslovak proposal was then withdrawn without fur-

ther discussion. A proposal by the Yugoslav delegation that

the Berne Convention should be applied for cases not pro-

vided for by the Convention was also withdrawn.

Mr. Nicholls suggested that the meaning to be given to the

words “Certain Rules” in the title should reflect the text of

the withdrawn Czechoslovakian amendment. In my opinion,

however, the circumstances in which the Czechoslovak del-

egation agreed to withdraw their proposal are not sufficiently

explored in the minutes to enable us to take that meaning

from these words. Nor indeed is it sufficiently clear what the

scope was of the amendment which that delegation had orig-

inally proposed. In an earlier discussion, noted at p. 85 of the

minutes, both the British and the Soviet delegates had

expressed concern at the insertion of a clause which would

have opened gaps in the Convention, as its object was to

ensure uniformity. It may be that all the Czechoslovak dele-

gates were seeking to do was to insert a clause in order to

clarify the position in regard to chapters of law relating to

international carriage by air with which the Convention was

not attempting to deal. Their agreement to the substitution of

the words “Certain Rules” in the title can easily be explained

if that was the only purpose which their amendment was

intended to serve.

(c) DECISIONS BY THE COURTS IN THE UNITED

KINGDOM

As I said earlier, the only United Kingdom cases to which

we were referred were Grein v. Imperial Airways Ltd. [1937]

ERECT ee rca ne cece

59a

1 K.B. 50, 74-76, in which Greene L.J. made certain obser-

vations about the approach to construction of the Convention

and Gatewhite v. Iberia Lineas Aereas de Espafia S.A. [1990]

1 Q.B. 326, in which Gatehouse J. held that, in the absence of

express provision in the Convention excluding the owner’s

right of action, the owner of goods damaged or lost by a car-

rier was entitled to sue in his own name in accordance with

the lex fori and accordingly that the plaintiffs were entitled to

damages to be assessed at common law.

In Grein v. Imperial Airways Ltd. Greene L.J. made obser-

vations, at pp. 74-76, about the general objects of the Con-

vention, the desirability of an international code for air

carriage, and the need to approach the Convention with a

proper appreciation that it was one of the main objects-of the

Convention to secure the removal of various difficulties

which might otherwise have arisen by means of a uniform

international code. These observations are helpful as they sup-

port the approach which I have taken in my reading of the

Convention. But there is nothing in the facts of the case or the

particular decision arrived at which is relevant to the issue in

this case.

In Gatewhite v. Iberia Lineas Aereas de Espafia S.A. the

defendants had argued that, as that was a case of international

carriage of cargo by air, it was governed by the Convention

and that the plaintiffs had no claim under it as only the con-

signor or the consignee had a right of action against the car-

rier. The judge rejected this argument. He said, at p. 331G

that it was remarkable that nowhere did the Convention

expressly exclude the right of the owner of goods to sue the

carrier for damage to or loss of the goods and that the limi-

tation of this right to consignor or consignee alone arose, if at

all, by implication. Having examined various decisions from

other jurisdictions which were directed to this issue he was

attracted by the reasoning in Tasman Pulp & Paper Co. Ltd. v.

Brambles J.B. O’Loghlen Ltd. [1981] 2 N.Z.L.R. 225. It

seemed to him that, as the Convention did not expressly deal

with the position by excluding the owner's right of action,

although it could so easily have done so, the lex fori could fill

the gap: see p. 334G.

60a

Lord Marnoch in the Outer House of the Court of Session,

1996 S.L.T. 529, 537B was able to distinguish the Gatewhite

case on the ground that it was dealing with a quite separate

aspect of the Convention. Lord Clyde in the Inner-House, at

p. 546E, said that the area of title to sue was one in which the

Convention was not necessarily exhaustive. This decision,

however, does not sit easily with the idea that the object of

the Convention, in the areas with which it deals, was to pro-

vide uniformity of application internationally. As Shawcross

and Beaumont, Air Law, VII (188) have observed, the rule in

civil law countries is that only a party to a contract of car-

riage, or a principal for whom he was acting, is regarded as

the appropriate plaintiff. In common law countries the proper

plaintiff is the owner of the goods, whose right to sue depends

on his interest in the goods, not on the fact that he may also

be a party to the contract. It would seem to be more consistent

with the purpose of the Convention to regard it as providing

a uniform rule about who can sue for goods which are lost or

damaged during carriage by air, with the result that the owner

who is not a party to the contract has no right to sue in his

own name.

We were not asked to review the Gatewhite case in detail

however, and as the point was not fully argued I would not

wish to cast further doubt on the decision which Gatehouse J.

reached. It is sufficient for present purposes to say that | am

not persuaded that we should apply his reasoning to the ques-

tion which is before us here, which is not concerned with the

question of standing or title to sue but with the question

whether a person who has an undoubted title to sue under the

Convention can pursue a claim outside the Convention where

the Convention itself does not provide him with a remedy.

(d) DECISIONS BY THE FOREIGN COURTS

Much of the discussion in both the Outer House and the

Inner House in the Court of Session was taken up with a

detailed examination of various cases on this topic from the

United States of America. All the judges in that court were of

the view however that, in the end, no clear guidance was

6la

available from this source to enable them to rely on this mate-

rial in reaching their decision in the present case. Lord

Marnoch observed, 1996 S.L.T. 529, 536C-D, that the

Supreme Court had on two occasions in recent times found it

either unnecessary or inappropriate to consider the question

whether the Convention provided an exclusive course of

action for injuries sustained during international air trans-

portation: Air France v. Saks (1985) 470 U.S. 392; and East-

ern Airlines Inc. v. Floyd (1991) 499 U.S. 530. The result of

his review was that there was no clear or very consistent line

of reasoning in these cases to guide him in this area of inter-

national air law. Lord Mayfield, 1996 S.L.T. 529, 544C said

that it was impossible to draw any clear conclusion as to the

state of U.S. law, and Lord Clyde expressed the same view, at

p. 547J, having observed earlier that it was pointless and per-

haps impertinent to subject all these cases to critical analysis.

Lord Allanbridge was able to find support in some of the

cases for the view which he had already reached on his exam-

ination of the Convention. But in the end he agreed, at p.

542L with the observations of Leggatt L.J. in Sidhu v. British

Airways Plc. in the Court of Appeal that, in view of the con-

flicting nature of these authorities and the fact that the

Supreme Court had twice refrained from addressing the pre-

sent problem, it was necessary to reach a conclusion in this

case without any definite aid from the United States. As Leg-

gatt L.J. said in his judgment, it appears that the point is not

settled in the United States as between circuits and even in

some instances within the same circuit. From his considera-

tion of the cases cited to him he was not prepared to say

where the preponderance of current opinion lies in the United

States.

I do not think that I can usefully add much to these obser-

vations. One could, of course, attempt to prepare an analysis

of the various cases which were cited to us in order to show

why Metz v. K.L.M. Royal Dutch Airlines, (1979) 15 Avi. 17,

843, Abramson v. Japan Airlines Co. Ltd. (1984) 739 F. 2d

130, Fischer v. Northwest Airlines, (1985) 623 F. Supp. 1064

and Walker v. Eastern Airlines, (1991) 23 Avi. 17, 904, which

favour the position of the pursuer and the plaintiffs in this

62a

case, should be rejected in the light of the contrary view

expressed in Finkelstein v. Trans World Airlines Inc. (1978)

15 Avi. 17, 379 and Saloom (George) v. British Airways,

(unreported), 22 February 1993, U.S. District Court, South-

ern District of California, Western Region. The Saloom case

is of particular interest, as the claims which the court held

were governed exclusively by the Convention and could not

be made out on the facts arose out of the same incident as that

with which we are concerned in this case. There are dicta in

some other cases, notably Boehringer-Mannheim Diagnostics

Inc. v. Pan American Airways Inc. (1984) 737 F. 2d 456,

which support the general view that the Convention provides

the sole cause of action where a passenger seeks to establish

a claim against an air carrier and is the exclusive remedy. But,

as Lord Clyde pointed out, 1996 S.L.T. 529, 547C, these gen-

eral observations are of little value unless they are based on

a clear and precise understanding of what matters are gov-

erned by the Convention. I am not confident, with great

respect to the many American judges who have participated

in this debate, that that has always been the case. I believe

that it would be unwise to attempt to reconcile all these dicta,

or to try to subject each of the various decisions to analysis in

order to extract from them a view which one could be confi-

dent would be regarded as authoritative.

In any event, as Mr. Webb pointed out, the United States is

only one jurisdiction among many. Although the volume of

litigation in that country on aviation matters is substantial and

the jurisprudence which has been developed is an important

source of information on aviation law generally, views formed

there cannot be assumed to be the same as those formed in

other jurisdictions which are party to the Convention. Some

of the cases in the United States may also be influenced by

the question whether the claim for damages was properly to

be litigated in the State courts rather than the Federal courts.

Lord Diplock in Fothergill v. Monarch Airlines Ltd. [1981]

A.C. 251, 284C drew attention to the factors on which the

persuasive value of the decisions of a foreign court must

depend. These include the reputation and status of the court,

and the extent to which the decision is binding upon courts of

63a

co-ordinate and inferior jurisdiction in that country. As mat-

ters have developed it will ultimately be for che Supreme

Court of the United States of America to offer guidance to the

American judges on this issue, and at this stage I do not think

that we should attempt to enter into the difficult debate as to

how the balance of view is likely to be resolved when the

matter is dealt with by that court.

As for the French case to which we were referred, I think

that it also must be regarded as being of no persuasive value

in the present case. In Ismail A. Mohamed v. British Airways,

(unreported), 8 November 1995, 65 passengers and their close

relatives, who were all French nationals, claimed damages

from British Airways for the consequences of the same events

as those which have given rise to the claims which are before

us in these appeals. The Tribunal de Grande Instance de Paris

reached the view on the facts that the damages claimed were

not linked with disembarkation operations as such, and that

they could not be linked to those risks inherent in aerial nav-

igation as provided by the Warsaw Convention. In these cir-

cumstances the court felt free to determine the law applicable,

on the view that the consequential damages claimed were not

covered by the field of application of the Convention. French

law was applied, and the plaintiffs were found entitled to

damages unrestricted by the limits set by article 22 of the

Convention.

That, however, was a decision at first instance, and we were

told that it is now under appeal. The copy of the judgment

with which we have been provided, in an English translation,

does not contain a close analysis of the Convention, nof is

there any reference to previous decisions on the issue in the

French courts or elsewhere. The reasons given do not disclose

a detailed examination of the issues raised by the defence. It

is reasonably clear however that the case proceeded upon a

different view from that which has been taken in the present

case, where it is conceded that the claims can properly be

regarded as arising out of international carriage of passengers

by air.

CONCLUSION

I believe that the answer to the question raised in the pre-

sent case is to be found in the objects and structure of the

Convention. The language used and the subject matter with

which it deals demonstrate that what was sought to be

achieved was a uniform international code, which could be

applied by the courts of all the High Contracting Parties with-

out reference to the rules of their own domestic law. The Con-

vention does not purport to deal with all matters relating to

contracts of international carriage by air. But in those areas

with which it deals—and the liability of the carrier is one of

them—the code is intended to be uniform and to be exclusive

also of any resort to the rules of domestic law.

An answer to the question which leaves claimants without

a remedy is not at first sight attractive. It is tempting to give

way to the argument that where there is a wrong there must be

a remedy. That indeed is the foundation upon which much of

our own common law has been built up. The broad principles

which provide the foundation for the law of delict in Scotland

and of torts in the English common law have been developed

upon these lines. No system of law can attempt to compensate

persons for all losses in whatever circumstances. But the

assumption is that, where a breach of duty has caused loss, a

remedy in damages ought to be available.

Alongside these principles, however, there lies another

great principle, which is that of freedom of contract. Any per-

son is free, unless restrained by statute, to enter into a con-

tract with, another on the basis that his liability in damages is

excluded or limited if he is in breach of contract. Exclusion

and limitation clauses are a common feature of commercial

contracts, and contracts of carriage are no exception. It is

against that background, rather than a desire to provide reme-

dies to enable all losses to be compensated, that the Con-

vention must be judged. It was not designed to provide

remedies against the carrier to enable all losses to be com-

pensated. It was designed instead to define those situations in

which compensation was to be available. So it set out the lim-

its of liability and the conditions under which claims to estab-

65a

lish that liability, if disputed, were to be made. A balance was

struck, in the interests of certainty and uniformity.

All the obvious cases in which the carrier ought to accept

liability were provided for. But, as one of the French dele-

gates to the Warsaw Convention, Mr. Ripert, observed (Min-

utes p. 73) when the definition of the period of carriage was

being discussed, there are an infinite variety of cases not all

of which can be put in the same formula. No doubt the domes-

tic courts will try, as carefully as they may, to apply the word-

ing of article 17 to the facts to enable the passenger to obtain

a remedy under the Convention. But it is conceded in this

case that no such remedy is available. The conclusion must be

therefore that any remedy is excluded by the Convention, as

the set of uniform rules does not provide for it. The domestic

courts are not free to provide a remedy according to their own

law, because to do this would be to undermine the Conven-

tion. It would lead to the setting alongside the Convention of

an entirely different set of rules which would distort the oper-

ation of the whole scheme.

The Convention is, of course, tightly drawn on these mat-

ters. This has been done in the interests of the carrier, whose

exposure to these liabilities without the freedom to contract

out of them was a principal consequence of the system which

it laid down. Were remedies outside the Convention to

become available, it would encourage litigation in other cases

to restrict its application still further in the hope of obtaining

a better remedy, against which the carrier would have no pro-

tection under the contract. I am in no doubt that the Con-

vention was designed to eliminate these difficulties. I see no

escape from the conclusion that, where the Convention has

not provided a remedy, no remedy is available.

For these reasons I would dismiss both appeals.