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

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Supreme Court, US

No. 97-475 FILED

JUL 1 6 1998

“ CLERK

IN THE

Suprene Court of the United States

OCTOBER TERM, 1997

EL AL ISRAEL AIRLINES, LTD..,

Petitioner,

—vV—

TSUI YUAN TSENG,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR PETITIONER

DIANE WESTWOOD WILSON

Counsel of Record

CONDON & FORSYTH LLP

1251 Avenue of the Americas

New York, New York 10020

(212) 921-5100

Attorneys for Petitioner

EL AL ISRAEL AIRLINES, LTD.

\J~»

QUESTION PRESENTED

Whether the Warsaw Convention, a treaty of the United

States, exclusively governs and precludes any recovery for a

passenger's injuries sustained in the course of “international

transportation” if the injuries were not caused by an “acci-

dent” within the meaning of Article 17 of the Convention?

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED .......---:sseeerrrreennn i

TABLE OF AUTHORITIES ...-------:ssssrsrerren vi

OPINIONS BELOW ......--:-ssrsrrrersessenn 1

) JURISDICTION......000cccessesseeeesrsessenenneetes

: TREATY PROVISIONS INVOLVED.......-:-+00000' 2

STATEMENT. .....00sccsecerencconscsvoncnsonosnserees® 3

Nature of the Case .....---sssrercseceeresnereene 3

Proceedings in the District et: See 4

Decision of the Court of Appeals....---++ssss00 5

SUMMARY OF ARGUMENT .....---seseecrsttrentt 5

q ADORTTINT 0... .0ccnesenseosantoncancnanescosonscnse cs 8

: 1. THE TEXT OF THE WARSAW CONVENTION

q PROVIDES THE EXCLUSIVE CAUSE OF

F. ACTION FOR A PASSENGER ALLEGING

INJURY DURING INTERNATIONAL TRANS-

PORTATION BY AIR...--.--:ssrrrrrrereee %

A. The Rules For Treaty Interpretation Are

Well Established ......------ssrsrrrrrerrnn a)

B. The Text Of The Warsaw Convention

Establishes The Treaty As The Exclusive

Basis For Carrier Liability During Inter-

national Transportation By Air..........._.

Article | mandates the application of

the Warsaw Convention to all inter-

national transportation by air...........

Article 24 unambiguously provides that

Article 17 is the sole basis for a right

of recovery for passenger injury or

death during international transportation

RM nshhs cebheiiiidbtcecadhdieeess.

a. Courts have erroneously isolated

the Article 24 phrase “In the cases

covered by Article 17” to avoid

finding the treaty exclusive .......

b. The lower courts similarly have

misread the Article 24 phrase

“any action for damages, however

founded” to hold that a passenger's

cause of action may be “founded”

PRET Fubteeecedielinds cise csi

The preamble and other articles

demonstrate the uniform and compre-

hensive framework regulating carrier

liability during international transpor-

EY Ub dedeunideanitdcdindaece.....

a. The preamble makes clear that

the Convention unifies the rules for

the subjects addressed.............

PAGE

SUPPL

b. The subject of “Liability of the

Carrier” is regulated under its

own chapter......------sseerrrreee

c. The judiciary may not invoke state

law where the Convention does not

expressly so provide.....---.----*

EMENTARY MEANS OF INTERPRE-

TATION OF THIS TREATY CONFIRM THAT

THE WARSAW CONVENTION IS EXCLUSIVE

A. The Drafting And Negotiating History

Reinforce The Conclusion That The

Warsaw Convention Was Intended To Be

Exclusive ....-..-ceccecccccssenscssseoserees’

The Warsaw Conference narrowed the

1928 preliminary draft of Article 17,

which had proposed to make the carrier

liable for “death, wounding oF other

bodily injury of every description

suffered by a traveler” ......-----+5+5°"

The evolution of Article 24 confirms

that any action against the carrier must

be based on the Convention .....---+-+>

The delegates at the Warsaw Conference

debated the period of carriage that

would implicate carrier liability; how-

ever, presumptive and preemptive lia-

bility remained unchanged .....-.----->

PAGE

B. The Conduct Of The Contracting Nations -

Has Been Consistent With The Signatories’

Intent That The Warsaw Convention

Provides The Exclusive Cause Of Action ... 36

1. The Guatemala City Protocol reflects

the signatories’ understanding that the

unamended Warsaw Convention makes

a carrier potentially liable only for

“accidents” and that the Convention

POD istic 37

2. Montreal Protocol No. 4 furthers the

exclusivity objective, while leaving

Article 17 unchanged....... 38

C. The Court Should Find The Abnett Decision

By The Court Of Last Resort Of A Sister

nnn INN on tan 40

Ne siandactetangcmeiek ee oo 43

TABLE OF AUTHORITIES

Cases PAGE

Abnett v. British Airways plc, [1997] 1 All E.R. 193

(H.L. 1996) (U.K.) .....--0-2e eee eeeeerereereeeees passim

Abramson vy. Japan Airlines Co., 739 F.2d 130 (3d Cir.

1984), cert. denied, 470 U.S. 1059 (1985) ....... 14, 16

Air France v. Saks, 470 U.S. 392 (1985)......-.-6+- passim

Alvarez v. Servicios Aereos de Honduras, S.A., 24 Av.

Cas. (CCH) 17,888 (S.D. Tex. Jan. 11, 1994).... 14

Benjamins v. British European Airways, 572 F.2d 913

(2d Cir. 1978), cert. denied, 439 US. 1114

(1979)... ccccccccccccccscccsceccscoeesreses 11, 22, 27, 29

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

323 (Sth Cir. 1967), cert. denied, 392 U.S. 905

(19GB) ......ccccccccccccesscccccccsascccssesasoners 10, 12

Boehringer-Mannheim Diagnostics, Inc. v. Pan Am.

World Airways, Inc., 737 F.2d 456 (Sth Cir. 1984),

cert. denied, 469 U.S. 1186 (1985S) .......----0-e 14, 27

Buonocore v. Trans World Airlines, Inc., 900 F.2d 8

(2d Cir. 1990) .......--cceeceeenenenccceteeneeesers 17n

Chan v. Korean Air Lines, Ltd., 490 U.S. 122

C1GOD) ....cccccccccccccccscccscsocecesnesosenessoes passim

Choctaw Nation of Indians v. United States, 318 U.S.

423 (1943) ....-.-ceeeceececcnnceceeceecnecereeess 28

Curley v. American Airlines, Inc., 846 F. Supp. 280

(S.D.N.Y. 1994) ....---.ceeceeeeeenenereseessrssees 20n

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

1975), cert. denied, 429 U.S. $90 (1976)........- 17n

PAGE

De Geofroy v. Riggs, 133 U.S. ee 9n, 20n

DeMarines v. KLM Royal Dutch Airlines, 580 F.2d

sere ttt otetiagen do CE POET EC isd Nae 20n

Eastern Airlines, Inc. y. Floyd, 499 U.S. 530 (1991) .. passim

Eggink v. Trans World Airlines, Inc., 22 Av. Cas. (CCH)

17,731, 1990 WL 6553 (S.D.N_Y. Jan. 22,1990). 24

Evangelinos v. Trans World Airlines, Inc., 550 F.2d

Se OD BOD dankictiiisccteicec dics... 17n

Finkelstein v. Trans World Airlines, Inc., 15 Av. Cas.

(CCH) 17,379 (NLY. Sup. Ct. Sept. 28,1978)... 2

Fischer v. Northwest Airlines, 623 F Supp. 1064

ce coat ag Ee LT 16

Floyd v. Eastern Airlines. Inc., 872 F.2d 1462 (11th

Cir. 1989), aff'd, 499 U.S. $30 RE TS 2in

Garcia v. Aerovias de Mexico. S.A., 896 F. Supp.

ose eR PETE tt 12,14

Husserl v. Swiss Air Transport Co., 351 F. Supp.

702 (S.D.N.Y. 1972), aff'd, 485 F.2d 1240

ce ge REESE NE: tty 16

Hyosung (Am.). Inc. y. Japan Air Lines Co., 624

F. Supp. 727 (S.D.N_Y. SPndstedwheasieindelduc 39

In re Air Crash Disaster at Gander, Newfoundland on

Dec. 12, 1985, 660 F. Supp. 1202 (W.D. Ky.

ba i OREO: FET, IML 2In

In re Air Crash Disaster at Warsaw, Poland on Mar. 14,

1980, 535 F. Supp. 833 (E.D.N.Y. 1982), aff'd,

705 F.2d 85 (2d Cir.), cert. denied, 464 U.S. 845

Fee tenth iidessebnaliecdetics okue 23

PAGE

In re Air Disaster at Lockerbie, Scotland on Dec. 2] '

1988, 928 F.2d 1267 (2d Cir.), cert. denied, 502

Sy IEE coe vudinedotiasde beeen se passim

In re Korean Air Lines Disaster of Sept. 1, 1983, 664

F. Supp. 1463 (D.D.C. 1985), aff'd, 829 F.2d 1171

(D.C. Cir. 1987) (unrelated issue), aff'd, 490 U.S.

EES ELT T OR 39n

In re Mexico City Aircrash of Oct. 31, 1979, 708 F.2d

RGIS RR ee 2In

In the Case Concerning Rights of Nationals of the

United States of America in Morocco (France v.

United States), 1952 1.C.J. 176, 1952 WL 51

GRUEMG Wi vcs cacvcvuchsccsvandsldeciscbubanicueen.s 24

Jack v. Trans World Airlines, Inc., 820 F. Supp. 1248

Ge Ge BEEN adbtoccodthcddekabestatiaiicns passim

Krys v. Lufthansa German Airlines, 119 F.3d 1515

(lith Cir.), reh'g denied en banc, 130 F.3d 446

(llth Cir. 1997), cert. denied, 118 S. Ct. 1042

Gs Wis Shade du duie chine bac kame eee ee, 20n

Lemnitzer v. Philippine Airlines, 783 F. Supp. 1238

OE Ts CODED dovinkcocdcckstuitendeern cto 8n

Luna v. Compania Panamena De Aviacion, S.A., 851

F. Supp. 826 (S.D. Tex. 1994) ......... 00.0.0... 14

Martinez Hernandez v. Air France, 545 F.2d 279

(Ist Cir. 1976), cert. denied, 430 U.S. 950

FOE Pintbpdadaceiedactdatkene ene? 35n

McCulloch v. Sociedad Nacional de Marineros de

Honduras, 372 U.S. 10 (1963).................... 8n

Potter v. Delta Air Lines, Inc., 98 F.3d 881 (Sth Cir.

WED Vesndntccgdecdscduepidaict cchitbeLinia ue passim

PAGE

Recumar Inc. v. KLM Royal Dutch Airlines, 608

F. Supp. 795 (S.D.N_Y. og CR TS ee 14

Reed v. Wiser, 555 F.2d 1079 (2d Cir.), cert. denied,

434 U.S. 922 ccs fe Ee Ds CaN 12, 21, 27

Rhymes v. Arrow Air. Inc., 636 F. Supp. 737 (S.D.

Vinsedicspase aang ee ents 22n

Rocca v. Thompson, 223 U.S. 317 (1912)............. 19n

Romano v. British Airways, 943 F. Supp. 623 (N_D.

W. Va. 1996)... De eT ee 14

Sakaria v. Trans World Airlines, 8 F.3d 164 (4th Cir.

1993), cert. denied, 51] U.S. 1083(1994) 16

Salazar v. Mexicana Airlines, 20 Av. Cas. (CCH)

17,114 (W.D. Tex. Mar. Pe eeedis se: 14

Sale v. Haitian Center; Council, Inc, 509 U.S. 155

NN Th icinttbiedsnessigieiior ice 9n

Santovincenzo vy. Egan, 284 U.S. 30 FERAL 9, 28n

Schroeder y. Lufthansa German Airlines, 875 F.2d

sshebcsheresmcrroiice trsse, oe RE ae 17n

Shen vy. Japan Airlines, 918 F. Supp. 686 (S.D.N_Y.),

aff'd mem., 43 F.3d 1459 (2d Cir. 1994)... 4

Stanford v. Kuwait Airlines Corp., 705 F. Supp.

sigh rerctannnadeien ee tT Rien 22

Sumitomo Shoji Am., Inc. v. Avagliano, 457 US.

s depinceat nike ENT Re 9

Thach v. China Airlines, Ltd., No. 95 Civ. 8468,

1997 WL 282254 (S._.D.N.Y. May 27,1997)... 20n

The Amiable Isabella, 6 Wheat 1, 5 L. Ed. 19)

Srintatins aches ee ENE EE OER 10

PAGE

Tokio Marine & Fire Ins. Co. v. McDonnell Douglas

Corp., 617 F.2d 936 (2d Cir. 1980) .........--++.: 21n

Trans World Airlines, Inc. v. Franklin Mint Corp.,

466 U.S. 243 (1984) .......ccccccccecceeceees 9n, 29, 31n

Tseng v. EL AL Israel Airlines, Ltd., 919 F. Supp. 155

(S.D.N.Y. 1996), aff'd in part and rev'd in part,

122 F.3d 99 (2d Cir. 1997), cert. granted in part,

118 S. Ct. 1793, 66 U.S.L.W. 3203 (U.S. May 18,

1998) (NO. 97-475)... .. ccc ee cece cree eeeeeeeeres passim

Tseng v. EL AL Israel Airlines, Ltd., 122 F.3d 99

(2d Cir. 1997), cert. granted in part, 118 S. Ct.

1793, 66 U.S.L.W. 3203 (U.S. May 18, 1998)

(NO. 972478) ..ccccccccccccccccccccccvccescccsenes passim

United States v. Belmont, 301 U.S. 324 (1937)........ 8

Uwagbai v. Alitalia Airlines, 24 Av. Cas. (CCH)

17,811 (D. Mass. Jan. 20, 1994) ............eeeee: 20n

Velasquez v. Aerovias Nacionales de Colombia, S.A.,

747 F. Supp. 670 (S.D. Fla. 1990) ..........-.-++. 14, 20

Vimar Seguros v. M/V Sky Reefer, 515 U.S. 528

CRODSD oo vcnccestacccccnsnscudstecsecdsecsastasenss 29

Volkswagenwerk Aktiengesellschaft v. Schlunk, 486

U.S. 694 (19GB) 2... ccccccccccccccccccccccecsessecses 9, 28

Walker v. Eastern Air Lines, 785 F. Supp. 1168

(S.D.N.Y. 1992) ......ccccccecvccccsceccscccecees 16, 20n

Weinberger v. Rossi, 456 U.S. 25 (1982) ......--+--++: 9n

Zicherman v. Korean Air Lines Co., 516 U.S. 217

CODDGD vic cocvvvsdcncvescsedacteseecsdceptasdpetans passim

PAGE

Treaties, Protocols, Statutes, Rules and Regulations:

nS MII Cs cc a 8

Convention for the Unification of Certain Rules

Relating to International Transportation by Air,

concluded at Warsaw, Poland, October 12, 1929,

49 Stat. 3000, T.S. No. 876, 137 L.N.TS. 1]

(1934), reprinted in 49 U.S.C.A. § 40105 (1997)

SM inkusuveabess Giheveuscdsauduta coeck cunts passim

a aoe ole 2, 6, 10, 24

er OD Siieew chuddetasadveuddedeccadaces 2, 13, 31

ROT cio Es le eas ae 3, 13, 33

Ae a ab ds ek tin sciicccWrace ent Cie. l

i kt AREAS SUS ET REGS Mat een ba eera se, 4n

Re EE birt indie shetweksci bes bil aes 3

TE POE Kiln aVaubas cates dade) Rbkakes is heck 3

Pe EN dts ecistgdendbddiinds hbeitielade ton. 3

Pe es I i duis dilka bcntcedbdi diac debekdcicicee in. 4

Sas UE sandsnenuhneibauid cdinsdee lt 4

International Civil Aviation Organization, 2 Documents

of the International Conference on Air Law,

Montreal, ICAO Doc. 9154-LC/174-2 (1975).... 39

International Civil Aviation Organization, 2 Documents

of the International Conference on Air Law,

Guatemala City, ICAO Doc. 9040-LC/167-2

GRO nda nhthdh<sonkscen inthidebcudeliticl. sdabed: 37n

xii

PAGE

Agreement Relating to Liability Limitations of the

Warsaw Convention and the Hague Protocol,

Agreement CAB 18900, approved by CAB Order

E-28680, May 13, 1966, 31 Fed. Reg. 7302

CIGOGD cc dccccncobcckhettscngevaseeeebehutietnadsens 19n

International Air Transport Association: Agreement

Relating to Liability Limitations of the Warsaw

Convention, approved by D.O.T. Order 97-1-2,

1997 WL 4834 (D.O.T. Jan. 8, 1997) ............. 19n

Vienna Convention on the Law of Treaties, 1155

U.N.T.S. 331, T.S. No. 58 (1980), 8 I.L.M. 679

COIN. co nccuddnycavens44s06eseeniaeabkeceanbaee 9, 28n

Other Authorities:

Second International Conference on Private Aeronau-

tical Law Minutes (Robert C. Horner & Didier

Legrez trans., 1975).......--..seeceeeeeeeeeenees passim

Cassell’s New French Dictionary (5th ed. 1951) ...... 15n

The Concise Oxford French Dictionary (1934)..... 15n, 18n

Restatement (Second) of Foreign Relations Law § 146

COR S. édaccnvacsctevecceswaniwhanteesdbeaertekees i)

Restatement (Third) of Foreign Relations Law § 325

CITED kvo vd cctcsccevscaxesuctvenvacsnessntacenensve 9n

G. Nathan Calkins, Jr., The Cause of Action Under the

Warsaw Convention, Part 1, 26 J. Air L. & Com.

217 (Beemer DTD) 0.0 cvccccsecscsesscccccssees passim

G. Nathan Calkins, Jr., The Cause of Action Under the

Warsaw Convention, Part Il, 26 J. Air L. & Com.

DED CAE BEGG) ovccccivccovcctsscvesendvescins 22n

xiii

PAGE

H. Drion, Limitations of Liability in International Air

PO vdiahdinakakots dacdithedaxtiasidblccckvoks 22n

T.O. Elias, The Modern Law of Treaties i... aes On

John Jay Ide, The History and Accomplishments of the-

International Technical Committee of Aerial Legal

Experts (C.1.T.E.J.A.), 3 3. Air L. 26 (1932) ..... 29

I. Lauterpacht, Oppenheim's International Law (8th ed.

SONU S6kn bsuuincbabsh pan waiatbanabéecas thie nove; 9

Andreas F. Lowenfeld & Allen I. Mendelsohn, The

United States and the Warsaw Convention, 80

ts hr SU i 11

René H. Mankiewicz, The Liability Regime of the

International Air Carrier (1981)................. 22, 23

1 C. Shawcross & K. Beaumont, Air Law (4th ed.

LSPs EUS AOE OF Pp Sa ES GD 11

Sam Walker, Conflict of Laws, 23 Akron L. Rev. 19

EAR I OPE aE ae BE, OO Be A dls 18n

Miscellaneous:

S. Exec. Rep. No. 45, 97th Cong., Ist Sess.(1981)... 38n

S. Exec. Rep. No. 21, 101st Cong., 2d Sess. (1990)... 38n

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

No. 97-475

EL AL ISRAEL AIRLINES,

Petitioner,

—_—V.—

TSUI YUAN TSENG,

Respondent.

ON WRIT OF CERTIORA)*I TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR PETITIONER

OPINIONS BELOW

The opinion of the Court of Appeals for the Second Circuit

is reported at 122 F.3d 99 (2d Cir. 1997) (JA 40-62).'

The opinion of the United States District Court for the

Southern District of New York is reported at 919 F. Supp. 155

(S.D.N.Y. 1996) (JA 28-37).

JURISDICTION

The Judgment of the Court of Appeals for the Second Cir-

cuit was entered June 13, 1997. The jurisdiction of the Court

is invoked under 28 U.S.C. § 1254(1).?

' References to the Joint Appendix are indicated as “(JA ___).”

2‘ The Rule 29.6 Statement of petitioner EL AL Israel Airlines,

Ltd. was submitted with its petition for writ of certiorari to the United

States Court of Appeals for the Second Circuit.

TREATY PROVISIONS INVOLVED

The articles of the Warsaw Convention’ expressly involved

are Articles 1, 17, and 24.

Article 1(1) of Chapter I, Scope—Definitions, provides:

(1) This convention shall apply to all international trans-

portation of persons, baggage, or goods performed by

aircraft for hire. It shall apply equally to gratuitous

transportation by aircraft performed by an air trans-

portation enterprise.

49 Stat. 3014 (1934).

Article 17 of Chapter III, Liability of the Carrier, provides:

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.

49 Stat. 3018 (1934).

Article 24 of Chapter III, Liability of the Carrier, provides:

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

for damages, however founded, can only be brought sub-

ject to the conditions and limits set out in this conven-

tion.

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

the preceding paragraph shall also apply, without pre)-

udice to the questions as to who are the persons who

. Convention for the Unification of Certain Rules Relating

to International Transportation by Air, concluded at Warsaw, Poland,

October 12, 1929, 49 Stat. 3000, TS. No. 876, 137 L.N.T.S. 11

(1934), reprinted in 49 U.S.C.A. § 40105 (1997) (note) (“Warsaw Con-

vention”).

have the right to bring suit and what are their respective

rights.

49 Stat. 3020 (1934).

STATEMENT

Respondent Tsui Yuan Tseng sued EL AL in the Supreme

Court of the State of New York, New York County. (JA 10-

11). Tseng alleged assault, false imprisonment and property

damage in connection with her security screening conducted

by EL AL prior to travelling on an EL AL flight to Israel. (JA

10-11). EL AL removed the case to federal court under 28

U.S.C. §§ 1331 and 1441 because EL AL is a “foreign state”

within the meaning of 28 U.S.C. § 1603. (JA 1, R. 1).*

Following a non-jury trial, the district court dismissed the

personal injury claims and awarded damages with respect to

the baggage claim. See Tseng v. EL AL Israel Airlines, Lid.,

919 F. Supp. 155 (S.D.N.Y. 1996) (JA 28-37). The court

below reversed the dismissal of the personal injury claims,

affirmed the property damage award without comment and

remanded the case to the district court to address the issue of

recovery for Tseng’s personal injury claims under state law.

See Tseng v. EL AL Israel Airlines, Ltd., 122 F.3d 99 (2d Cir.

1997) (JA 40-62).

Nature of the Case

On May 22, 1993, Tseng arrived at the EL AL terminal at

John F. Kennedy International Airport in New York to travel

on EL AL flight 008 to Israel. (JA 19). Upon presenting her

ticket and passport to a security guard, she was admitted into

the EL AL terminal. (JA 7, R. 31, Tr. 11-12).° Tseng then

approached the security area and, in accordance with standard

* References to the record are indicated as “(JA __, R. __).”

* References to the trial transcript are indicated as “(JA _,R. _,

, pee

EL AL pre-boarding procedures, was questioned about her

destination and travel plans. (JA 7, R. 31, Tr. 11-12). Based

on her responses to these questions, she was considered a

“high risk” passenger with an “illogical story” and was

escorted into a private EL. AL security room where her bag-

gage and person were searched. (JA 7, R. 31, Tr. 69-70; JA 3,

R. 10, Ex. E at 24-31, 57-58; JA 22 & 23). EL AL was search-

ing for “{e)xplosives in any size, detonators, size from small,

like the cap of the pen, and of course up from that.” (JA 7, R.

31, Tr. 75). EL AL did not, at any time, use force in the

search, and Tseng did not at any time object to the search. (JA

22).

Proceedings in the District Court

A non-jury trial was held March 7, 8 and 11, 1996 before

the Honorable Louis L. Stanton of the United States District

Court for the Southern District of New York. (JA 7, R. 31-33,

Tr. 1-103).

At the conclusion of the trial, District Judge Stanton ruled,

in accordance with his decision in Shen v. Japan Airlines, 918

F. Supp. 686 (S.D.N.Y.), aff'd mem., 43 F.3d 1459 (2d Cir.

1994), that: (1) EL AL’s allegedly offensive security search

constituted an “accident” under Article 17; (2) although EL

AL’s security suspicions may have been mistaken, there was

no evidence of wilful misconduct; and (3) there could be no

recovery for Tseng’s emotional distress injuries because she

sustained no bodily injury. See Tseng, 919 F. Supp. 155 WA

28-37).

Tseng appealed the dismissal of her emotional distress

claims to the United States Court of Appeals for the Second

Circuit pursuant to 28 U.S.C. §§ 2106 and 2107.° GA 6,

R. 29).

* EL AL cross-appealed, pursuant to 28 U.S.C. § 1291, seeking to

vacate the property damage award on the basis that the award improperly

failed to uphold the fraud standard expressly prescribed by Article 26(4)

of the Convention. (JA 7, R. 34).

Decision of the Court of Appeals

On appeal, the court below held that: (1) Tseng’s personal

injuries were not the result of an “accident” within the mean-

ing of Article 17 of the Convention; (2) the Warsaw Con-

vention does not govern all of Tseng’s claims against EL AL,

i.e., the Convention applies to the passenger's property dam-

age claims, but not to her personal injury claims; and (3)

Tseng is entitled to pursue state law causes of action for her

personal injury claims against the carrier. See Tseng, 122 F.3d

99 (JA 40-62). The decision, entered June 13, 1997, reversed

and remanded the District Court judgment with respect to

denial of any recovery for Tseng’s personal injury claims and

affirmed without comment the property damage award. (JA

9). A motion to recall and stay the mandate (issued July 8,

1997) was granted September 8, 1997. (JA 9). EL AL’s peti-

tion for writ of certiorari was granted by the Court on May

18, 1998.

SUMMARY OF ARGUMENT

The judiciary is cbliged to enforce the entire Warsaw Con-

vention as drafted and intended. It is undisputed that, by its

terms, the Warsaw Convention treaty applies to “all interna-

tional transportation” and that, within the Convention, there

are express provisions governing the liability of a carrier for

damages occurring in the course of international transporta-

tion by air. The exclusivity dispute essentially centers on

whether Article 24 of the Convention must be read to provide

that a personal injury action for damages can be “founded” on

State substantive law if the passenger does not have a right of

recovery under “the conditions and limits set out in” Article

17. EL AL, with the concurrence of the Solicitor General, the

International Air Transport Association (“IATA”) and the Air

Transport Association of America (“ATA”), submits that the

court below improperly ruled that the cause of action created

by Article 17 is not exclusive and permits resort to state law

when it fails to provide a right of recovery for a passenger

injury or death claim.

The decision of the court below begins with the faulty

premise that the terms and conditions to recovery under Arti-

cle 17 must be satisfied for the Convention to “apply” or gov-

ern a passenger's claims. Tseng, 122 F.3d at 104-05 (JA 54).

Article 17 dictates when “a carrier shall be liable” for

personal injury or death. Article 17 is the controlling law

whenever a passenger injury or death is sustained, as here, in

the course of international transportation. The conditions set

forth in Article 17 determine whether a passenger can recover

for alleged harm, not whether the Convention applies to the

alleged harm. This distinction has been at the heart of the

controversy regarding the exclusivity debate.

Construction of the text of the Convention must begin with

Article 1. Article 1, in clear and unambiguous terms, states:

This convention shall apply to al/ international! trans-

portation of persons, baggage, or goods performed by

aircraft for hire.

49 Stat. 3014 (1934) (emphasis added). “The word ‘all’ is

important, simply because it is so all-embracing.” Abnett v.

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

(Pet. App. Sla).’ The text of the Warsaw Convention, as a

treaty of the United States and the supreme law of the land,

may not be judicially re-written on the basis that its express

language results in a particular passenger being deprived of a

right of recovery. EL AL urges reversal of the judgment of the

court below because it is on/y within the Convention that a

party may seek recovery for injuries sustained in the course of

international transportation by air. The lower court improperly

permitted resort to state law causes of action in a Warsaw

? The Abnett decision is reprinted in full in the Appendix to the

petition for writ of certiorari. Citations to Abnett are indicated as “(Pet.

App. __a).”

Convention personal injury case, thereby creating liability

where none was intended to exist.

Tseng’s action against EL AL cannot exist outside the terms

of the Warsaw Convention because:

(1) In plain and unambiguous terms, Articles 1, 17 and 24

of the Convention provide that with respect to “all inter-

national transportation” by air, any action against a carrier

“for damage sustained in the event of the death or wounding

of a passenger or any other bodily injury suffered by a pas-

senger” “can only be brought subject to the conditions and

limits set out in this convention”;

(2) Resorting to state law claims where the conditions for

Article 17 recovery are not met is wholly inconsistent with

the Warsaw Convention's goals of uniformity and limited lia-

bility and contradicts the comprehensive scheme of “checks

and balances” set forth in the Convention's chapter on carrier

liability;

(3) The predecessor drafts of the Convention, the discus-

sions by legal experts entrusted with drafting the Convention

and the negotiations among the delegates at the Warsaw Con-

ference in 1929 (which led to the final draft of the Conven-

tion) reflect that the treaty created the exclusive basis for

carrier liability for claims of passenger injury or death;

(4) Governments of signatory nations to the Convention

and the carriers which are bound by the Convention have con-

strued this treaty as exclusive;

(5) The Solicitor General, as representative of the United

States, has expressed the view that the Convention applies

exclusively; and

(6) In Abnett, the court of last resort of a sister signatory

that shares our common law heritage concluded that the Con-

vention is exclusive.

The decision of the lower courts (including the decision of

the court below), permitting resort to state law where a pas-

senger’s claim arises during international air transportation

but where the conditions precedent to carrier liability under

Article 17 are not met, ignore the plain language of the Con-

vention and improperly engage in judicial reconstruction of

the express terms of a treaty.

Accordingly, just as the Court corrected twenty years of

misapplication of Article 3 by the lower courts in Chan v.

Korean Air Lines, Ltd., 490 U.S. 122 (1989), the Court should

correct the misapplication of Articles 17 and 24, reverse the

judgment of the court below and hold that the Warsaw Con-

vention exclusively governs a passenger's right, if any, to

recover for personal injuries sustained in the course of inter-

national transportation by air.

ARGUMENT

THE TEXT OF THE WARSAW CONVENTION

PROVIDES THE EXCLUSIVE CAUSE OF ACTION

FOR A PASSENGER ALLEGING INJURY DURING

INTERNATIONAL TRANSPORTATION BY AIR

The Warsaw Convention has been the supreme law of the

land since 1934 and is exclusive of all local laws on matters

covered by this treaty. See U.S. Const. art. Il, §2; 49

U.S.C.A. § 40105; 49 Stat. 3000 (1934); Air France v. Saks,

470 U.S. 392, 406 (1985); see also United States v. Belmont,

301 U.S. 324, 331-32 (1937) (where judicial treaty interpre-

tation is involved, “state constitutions, state laws, and state

policies are irrelevant to the inquiry and decision”).*

* Only Congress may denounce the Convention or supplement i:

Convention by creating a statutory right of action in addition to those

provided under the Convention. See Lemnitzer v. Philippine Airlines, 783

F. Supp. 1238, 1241 (N.D. Cal. 1991), citing, McCulloch v. Sociedad

Nacional de Marineros de Honduras, 372 U.S. 10, 21 (1963).

9 ‘s

A. The Rules For Treaty Interpretation Are Well Estab-

lished

The interpretation of a treaty begins “with the text of the

treaty and the context in which the written words are used.”

Saks, 470 U.S. at 397; see also Eastern Airlines, Inc. v. Floyd,

499 U.S. 530, 534 (1991). Accord Vienna Convention on the

Law of Treaties, arts. 31 & 32, 1155 U.N.T.S. 331, T.S. No.

58 (1980), 8 I.L.M. 679 (1969) (treaties should be interpreted

in good faith by considering the ordinary meaning of the

words in their context in light of the treaty’s object and

purpose).’

Because the Warsaw Convention is a contract among

sovereign nations," the judiciary’s role is limited to giving

effect to the “shared expectations” and intent of the con-

tracting parties. Saks, 470 U.S. at 399; see also Volkswagen-

werk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 (1988).

Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 185

(1982); Sax:ovincenzo v. Egan, 284 U.S. 30, 40 (1931)."' This

requires the judiciary to give regard to the context in which

the terms of the treaty are used and the circumstances under

which the treaty was drafted. See Restatement (Second) of

Foreign Relations Law § 146 (1965); I. Lauterpacht, Oppen-

heim'’s International Law 953 (8th ed. 1955) (courts should

° Although the United States has not ratified the Vienna Con-

vention on the Law of Treaties, Restatement of Foreign Relations notes

that the interpretive provisions “represent generally accepted principles.”

Restatement (Third) of Foreign Relations Law § 325 cmt. a. (1987); see

also Sale v. Haiticn Centers Council, Inc., 509 U.S. 155, 190 (1993):

Weinberger v. Rossi, 456 U.S. 25, 29 n5 (1982).

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

243, 282 (1984); De Geofroy v. Riggs, 133 U.S. 258, 271 (1890).

‘| Treaty interpretation may require consideration of three major

factors: (1) the text of the treaty, (2) the intention of the parties and (3)

the object and purpose of the treaty. See T.O. Elias, The Modern Law of

Treaties 72 (1974). “[T)he basic approach most favored is the textual

interpretation of a treaty.” /d.

consider the treaty’s “purpose, the motives which led to its

conclusion, and the conditions prevailing at the time”).

Where, as here, the text is clear, the Court may not “alter,

amend, or add to [the] treaty, by inserting any clause, whether

small or great, important or trivial.” Chan, 490 U.S. at 135

(quoting The Amiable Isabella, 6 Wheat 1, 71,5 L. Ed. 191

(1821)). If a court inserts an amendment to a treaty, such con-

duct is “an usurpation of power, and not an exercise of judi-

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

treaty.” /d.

Thus, it is clear that the Court is

to find out the intention of the parties by just rules of

interpretation applied to the subject matter; and having

found that, [the Court’s] duty is to follow it as far as it

goes, and to stop where that stops—whatever may be the

imperfections or difficulties which it leaves behind.

Id.

B. The Text Of The Warsaw Convention Establishes The

Treaty As The Exclusive Basis For Carrier Liability

During International Transportation By Air

1. Article 1 mandates the application of the Warsaw

Convention to all international transportation by

air

The Warsaw Convention expressly applies to “all inter-

national transportation of passengers, baggage or goods per-

formed by aircraft,” when “for hire” or-“gratuitous[ly]. . .

performed by an air transportation enterprise.” Article | (1).

49 Stat. 3014 (1934). In Block v. Compagnie Nationale Air

France, 386 F.2d 323, 327 (Sth Cir. 1967), cert. denied, 392

U.S. 905 (1968), the Court of Appeals for the Fifth Circuit

concluded that Article | is “unambiguous” and recognized the

three express exceptions to the “wide sweep” of Article 1's

scope:

(1) “transportation performed under the terms of any

international postal convention” (Article 2(2));

(2) “international transportation by air performed by

way of experimental trial by air navigation enter-

prises” (Article 34); and

(3) “transportation performed in extraordinary cir-

cumstances outside the normal scope of an air car-

rier’s business” (Article 34).

See also 1 C. Shawcross & K. Beaumont, Air Law 9 VII(112)

(4th ed. 1998) (“The Convention did not purport to deal with

all matters relating to contracts of international carriage by air.

But in those areas with which it dealt—and the liability of the

carrier was one of them—the code was intended to be uniform

and to be exclusive also of any resort to the rules of domestic

law.”’).

The drafters identified the exceptions to the Convention’s

application. The Convention clearly was intended to apply to

all international transportation by air, except where so noted

in the Convention.

Article 1’s application to all international transportation

reflects the two preponderant goals of the drafters in 1929:

(1) to create a uniform law permitting recovery for claims

arising out of international transportation, but also

(2) to limit the carrier's potential liability for claims of

personal injury or death and avoid the application of varying

local laws.'* See In re Air Disaster at Lockerbie, Scotland

on Dec. 21, 1988, 928 F.2d 1267, 1270 (2d Cir.), cert. denied,

502 U.S. 920 (1991) (“Lockerbie”), citing, Andreas F.

Lowenfeld & Allen I. Mendelsohn, The United States and the

Warsaw Convention, 80 Harv. L. Rev. 497, 498-99 (1967):

Benjamins v. British European Airways, 572 F.2d 913, 919

ia As noted infra at 18 n19, at the time the Warsaw Convention

was drafted, carriers were able to disclaim any liability to passengers in

a majority of the countries of the world.

(2d Cir. 1978), cert. denied, 439 U.S. 1114 (1979); Block, 386

F.2d at 327.

Thus, the Court has recognized the interest of the signato-

ries to provide uniformity in this area of law. See Zicherman

v. Korean Air Lines Co., 516 U.S. 217, 230 (1996) (“Undoubt-

edly it was a primary function of the Warsaw Convention to

foster uniformity in the law of international air travel”);

Floyd, 499 U.S. at 552 (“Warsaw Convention's stated purpose

of achieving uniformity of rules governing claims arising

from international air transportation”); see also Reed v. Wiser,

555 F.2d 1079, 1090 (2d Cir.) (a “fundamental purpose” of

the signatories “was their desire to establish a uniform body

of world-wide liability rules to govern international aviation,

which would supersede with respect to international flights

the scores of differing domestic laws, leaving the latter appli-

cable only to the internal flights of each of the countries

involved”) (footnotes omitted), cert. denied, 434 U.S. 922

(1977).

The court below failed to uphold the interest of uniformity

by misplaced reliance on the Zicherman decision, believing

Zicherman supports the proposition that “the Convention

expresses no compelling interest in uniformity that would

warrant. . . supplanting an otherwise applicable body of law,

here state law.” Tseng, 122 F.3d at 107 (JA 60). Zicherman,

however, addresses the issue of the measure of recovery under

the Convention, which the Court found had been intended by

the drafters specifically to be a matter of the applicable state's

law. 516 U.S. at 225 (Article 17 leaves to domestic law what

passengers “may be compensated for”).

State law supplements the Convention only where the Con-

vention so stipulates (such as compensable damages). Unlike

the issue of recoverable damages, the treaty’s goal of uni-

formity is fundamental to the issue of substantive carrier lia-

bility. See Garcia v. Aerovias de Mexico, S.A., 896 F. Supp.

1216, 1218 (S.D. Fla. 1995) (“[T]his court does not believe

that ‘concerns about uniformity’ are satisfied by the Warsaw

Convention’s exclusive remedy. Instead, the Warsaw Con-

vention preempts state law claims and provides an exclusive

federal cause of action and remedy for cases involving inter-

national air transportation.”).

2. Article 24 unambiguously provides that Article

17 is the sole basis for a right of recovery for

passenger injury or death during international

transportation by air

Articles 17 and 24 provide:

Article 17

The carrier shall be liable fo: 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.

49 Stat. 3018 (1934).

Article 24

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

for damages, however founded, can only be brought sub-

ject to the conditions and limits set out in this conven-

tion.

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

the preceding paragraph shall also apply, without prej-

udice to the questions as to who are the persons who

have the right to bring suit and what are their respective

rights.

49 Stat. 3020 (1934).

The practical construction of the text of Articles 17 and 24,

when read with the all-embracing language of Article 1, is

that the Convention is the sole basis for a right of recovery

against an air carrier for claims arising in the course of inter-

national transportation. Accord Romano v. British Airways,

943 F. Supp. 623 (N.D. W. Va. 1996) (“plain language” of

Article 24 completely preempts any other cause of action for

delay).

A natural reading of Article 24(2) together with Article

24(1) must be:

In the cases covered by article 17, any action for dam-

ages, however founded, can only be brought subject to

the conditions and limits set out in this convention, with-

out prejudice to the questions as to who are the persons

who have the right to bring suit and what are their

rights.

When courts have read Article 24 as a whole, and in the

context of the other provisions of the treaty and its stated pur-

pose, they have concluded the Convention is exclusive and

preclusive. See Potter v. Delta Air Lines, Inc., 98 F.3d 881,

885 (Sth Cir. 1996); Boehringer-Mannheim Diagnostics, Inc.

v. Pan Am. World Airways, Inc., 737 F.2d 456, 458-59 (Sth

Cir. 1984), cert. denied, 469 U.S. 1186 (1985); see also

Garcia, 896 F. Supp. at 1218; Luna v. Compania Panamena

De Aviacion, S.A., 851 F. Supp. 826, 831 (S.D. Tex. 1994);

Alvarez v. Servicios Aereos de Honduras, S.A., 24 Av. Cas.

(CCH) 17,888, 17,890 (S.D. Tex. Jan. 11, 1994); Jack v. Trans

World Airlines, Inc., 820 F. Supp. 1218, 1223 (N.D. Cal.

1993); Velasquez v. Aerovias Nacionales de Colombia, S.A.,

747 F. Supp. 670, 676 (S.D. Fla. 1990); Salazar v. Mexicana

Airlines, 20 Av. Cas. (CCH) 17,114, 17,115 (W.D. Tex. Mar.

10, 1986); Recumar Inc. v. KLM Royal Dutch Airlines, 608 F.

Supp. 795, 797-98 (S.D.N.Y. 1985).

The Fifth Circuit in Potter. unlike the court below or the

Third Circuit in Abramson v. Japan Airlines Co., 739 F.2d

130, 133 (3d Cir. 1984), cert. denied, 470 U.S. 1059 (1985),

read the express preemption language in Article 24 as preclu-

sive. Potter found that the “subject matter of the Convention

requires uniformity.” 98 F.3d at 885. Thus, upholding the pre-

emptive force of Article 24(2), the Fifth Circuit stated:

Mrs. Potter. . . reads the preemption language in arti-

cle 24(2) to prohibit state law causes of action only

where a claim has been adjudicated an “accident” and

deemed compensable under the Warsaw Convention. We

disagree.

98 F.3d at 885 (footnotes omitted).

The Court also should disagree. It is antithetical to interpret

Articles 17 and 24(2) as providing that a passenger can seek

redress outside the Convention.

a. Courts have erroneously isolated the Article

24 phrase “In the cases covered by Article

17” to avoid finding the treaty exclusive

Despite Article 24’s declaration that any personal injury or

death action may be based only on the terms of the Conven-

tion, courts often have engaged in a painstaking parsing of

various phrases within Article 24 to avoid the inexorable con-

clusion that the Convention’s cause of action is exclusive and

completely preempts state law claims.

One of the misconstrued phrases in Article 24 is: “In the

cases covered by Article 17. . . .”"° See, e.g., Tseng, 122

3 The only authentic text of the Warsaw Convention is in French:

thus, the Court has analyzed the French text to guide its analysis. See

Floyd, 499 U.S. at 535; Saks, 470 U.S. at 399. The French text of this

phrase reads: “[dJans les cas prévus a |’ article 17”. A literal translation

of the clause is “in the circumstances anticipated [or “foreseen”] in arti-

cle 17.” See Cassell’s New French Dictionary 130, 565-66 (Sth ed. 1951).

The phrase has also been translated: “In the cases provided for in article

[17]. . . .” Second International Conference on Private Aeronautical

Law Minutes at 265 (Robert C. Horner & Didier Legrez trans., 1975)

(“Warsaw Minutes”).

The English translation of the phrase “cases covered by” is

based on the French “prévus” (from the infinitive “prévoir”), which was

defined broadly in contemporaneous dictionaries. See, e. g., The Concise

Oxford French Dictionary at 662 (1934) (“to foresee, to anticipate, to

conjecture, to forecast, to look forward to, to provide for”). Thus, arriv-

ing at the meaning of a phrase by isolating and translating its words

F.3d at 104 (JA 54); Abramson, 739 F.2d at 133-34 (quoting

Husserl v. Swiss Air Transport Co., 351 F. Supp. 702

(S.D.N.Y. 1972), aff'd, 485 F.2d 1240 (2d Cir. 1973)); see

also Sakaria v. Trans World Airlines, 8 F.3d 164, 173 (4th Cir.

1993), cert. denied, 511 U.S. 1083 (1994) (dicta); Walker v.

Eastern Air Lines, 785 F. Supp. 1168, 1172-73 (S.D.N-Y.

1992); Fischer v. Northwest Airlines, 623 F. Supp. 1064 (N.D.

Ill. 1985). The court below inaccurately interpreted this

clause to mean that the Convention applies only if the pas-

senger has met all of the conditions to a right of recovery

under Article 17, to wit—the Convention applies only where

it provides a right of recovery (i.e., physical injury caused by

an “accident” on board the aircraft or in the course of embark-

ing or disembarking), and then it is exclusive and completely

preempts state law. Tseng, 122 F.3d at 104-05 (JA 54-55).

According to such faulty reasoning, Tseng, who is not enti-

tled to any recovery under Article 17, has been permitted to

resort to state substantive law despite Article 24's express

application of state law only as to matters of procedure and

measure of damages. The court below states that its narrow

reading of Article 24(2) is an express reading of the text, but

in reality it is only a reading of the single phrase “in the cases

covered by Article 17.”

As noted by the Solicitor General’* and the House of

Lords,'’ to achieve a practical construction of the “in the

resuli. in varying interpretations and, therefore, differing conclusions,

none of which is necessarily dispositive. See Abnett (Pet. App. 55a)

(“exact analysis” of each word of the phrase “in the cases covered by” is

improper as the phrase should be interpreted in “consideration of the

whole purpose of the article”). A literal translation only is helpful when

one is looking at a word, not a phrase, in isolation. See, e.g., Floyd, 499

U.S. at 537 (“lésion corporelle”); Saks, 470 U.S. at 399-400 (“accident”).

Amicus Br. at 14 (the phrase simply serves as a “shorthand” for

personal injury cases in general, as distinguished from checked baggage

or delay cases “covered by Articles 18 and 19”).

'S Abnett (Pet. App. 55a) (“The phrase ‘in cases covered by article

17° extends therefore to all claims made by the passenger against the

cases covered by” phrase, it must be read in relation to the

entirety of Articles 1, 17 and 24. The Convention expressly

provides in Article | that it applies to all international trans-

portation. Article 17 sets forth the circumstances in which a

carrier “shall be liable” for harm to a passenger that arose

during international transportation: (1) the passenger suffered

physical injury; (2) his damages were caused by an “acci-

dent”—an unusual or unexpected event or happening external

to the passenger—and (3) the accident occurred on board the

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

embarking. Floyd, 499 U.S. at 535-36. Courts misread Arti-

cle 24 to mean that the Convention does not “apply” if the

carrier “shall not be liable” under Article 17.

The lower court’s concern that a carrier could possibly

escape liability for injuries occurring on the carrier's

premises at the airport (e.g¢., falling off an escalator) prior to

embarking or after disembarking is without merit. See Tseng,

122 F.3d at 107 (JA 59-60). For claims of personal injury,

Article 17 makes the carrier liable for bodily injury only

which is the result of an “accident” “on board the aircraft or

in the course of any of the operations of embarking or dis-

embarking.”'® Consequently, the Convention does not purport

to extend to claims arising before the process of embarking or

after disembarking because the harm would not have been

sustained in the course of international transportation. How-

ever, if a passenger cannot establish the substantive condi-

tions for a right of recovery under Article 17 (i.e., bodily

carrier. . . other than claims for damage to. . . baggage. . . under

article 18 and claims for delay. . . under article 19.”).

‘© Respondent does not dispute that she was in the course of

embarkation. The security search conducted by EL AL satisfies the tests

foltowed by the courts of appeals to determine if a passenger is in the

course of embarkation or disembarkation. Compare Buonocore v. Trans

World Airlines, Inc., 900 F.2d 8 (2d Cir. 1990); Schroeder v. Lufthansa

German Airlines, 875 F.2d 613 (7th Cir. 1989); Evangelinos v. Trans

World Airlines, Inc., 550 F.2d 152 (3d Cir. 1977); Day v. Trans World

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

(1976).

injury (Floyd) caused by an “accident” (Saks)"’ in the course

of international transportation), the passenger is not permit-

ted to seek recourse outside the Convention."*

An undisputed goal of the Warsaw Convention delegates

was to limit the potential liability of air carriers “in order to

foster the growth of the fledgling commercial aviation indus-

try.” Floyd, 499 U.S. at 546. As acknowledged by the Court,

the signatories in 1929 “wre more concerned with protecting

air carriers and fostering » new industry than providing full

recovery to injured passengers.”'* Jd. Accordingly, the Court

The district court held that the “routine search, applied erro-

neously to plaintiff in the course of embarking on the aircraft, is fairly

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

unusual event or happening external to the passenger.” Tseng, 919 F.

Supp. at 158 (JA 31-32). In rendering its decision, the court expressly

relied on the definition of an Article 17 “accident” as set forth in Saks,

“flexibly applied after assessment of all the circumstances surrounding

a passenger's injuries.” Tseng, 919 F. Supp. at 157 (quoting Saks, 470

U.S. at 405) (JA 30).

The term “accident” as used in the 1929 French text is varied

enough to include circumstances far greater than suggested by the court

below. Contemporaneous definitions of the term “accident” are broad

and, thus, “accident” should be interpreted as such. See, e.g., The Concise

Oxford French Dictionary at 8, defining accident as “accident, chance,

occurrence, incident; mishap, misfortune, casualty; unevenness, irreg-

ularity in structure, varied aspect, undulation; (med.) unexpected symp-

tom, sudden complication; (mus. paint.) accidental; (gram.) accidence.”

'§ "This is consistent with the liability rules of civil law countries,

upon which the Convention is designed. In civil law countries, nearly

every right of action has been created by code or statute and, thus, if a

person cannot satisfy the express terms of the code provision, he does noi

have a right of action. See, e.g., Sam Walker, Conflict of Laws, 23 Akron

L. Rev. 19, 23 (1989); see also Lockerbie, 928 F.2d at 1279 (“[{T}he Con-

vention was drafted against a civil law background that placed the cause

of action in contract. . . . The bodies of common and civil law of con-

tract are not identical.”) (citations omitted).

'° The court below had stated that “excluding state law claims

where the Convention does not apply is inconsistent with the Conven-

tion’s goal of protecting passengers.” Tseng, 122 F.3d at 107 (JA 61). The

concluded that the term “lésion corporelle” in Article 17

refers only to bodily injury. The Warsaw signatories made a

“legislative choice” to deny passengers recovery for psychic

injuries unaccompanied by physical injury.’ /d. Likewise, the

contracting parties’ “legislative choice” that the Convention

provide the sole basis of redress for a personal injury sus-

tained during international transportation should be respected

in this case.

The court below misconstrued the IATA Intercarrier Agree-

ment on Passenger Liability. See Tseng, 122 F.3d at 107-108

(JA 61-62).*' As pointed out in the amici briefs submitted by

IATA, the ATA and the Solicitor General in support of the

petition, the LATA Intercarrier Agreement continues to pre-

sume that the Warsaw Convention is the exclusive basis for a

plaintiff’s action for personal injury or death arising during

international transportation.*?

delegates clearly desired to balance the interests of the passengers with

those of the carrier; but, the Convention's compromise, with respect to

passengers, was foregoing the then acceptable full disclaimer of liabil-

ity on the part of the carrier in favor of a new imposition of liability only

as prescribed by the Convention. See Warsaw Minutes at 47-48 (cited in

full in petition for writ of certiorari at 12-13 n8).

20 ‘The drafters also provided, in Article 20, for situations where

the passenger could have sustained bodily injury as a result of an Arti-

cle 17 accident and still be entitled to no recovery. Although carriers

operating into and through the United States have waived the Article 20

defense, this article is another example where the drafters made a con-

scious choice to deny recovery to an injured passenger. See Agreement

Relating to Liability Limitations of the Warsaw Convention and the

Hague Protocol, Agreement CAB 18900, approved by CAB Order

E-28680, May 13, 1966, 31 Fed. Reg. 7302 (1966).

?! International Air Transport Association: Agreement Relating to

Liability Limitations of the Warsaw Convention, approved by D.O.T.

Order 97-1-2, 1997 WL 4834 (D.O.T. Jan. 8, 1997). The Court must look

to the “expectations” of the “continental jurists” who drafted the Con-

vention. Saks, 470 U.S. at 399; see also Rocca v. Thompson, 223 U.S.

317, 331 (1912).

22 This is necessarily so because a treaty is the supreme law of the

land in the United States and, thus, the majority of Foreign Air Carrier

To permit a state law claim when a passenger fails to show

that an accident caused the alleged injury or that he or she

suffered bodily harm would create carrier liability where, by

the express terms of Articles 1, 17 and 24, none was intended

to exist. The court below concluded that Tseng’s injury was

not caused by an Article 17 “accident”.** The court below,

therefore, should have affirmed the dismissal of Tseng’s per-

sonal injury claims against EL AL.

While the court below may have been motivated by a desire

to provide Tseng with a cause of action, the decision effec-

tively, and improperly, subordinated the supreme law of the

land to the common law of the several states. See Velasquez,

Permits on file with the Department of Transportation stipulate that the

Warsaw Convention exclusively governs international air transportation

as evidenced by the recognition afforded the Warsaw Convention in the

Permit’s Attachment (a/k/a Appendix). See also ATA Amicus Br. at 7; JA

26; JA 7, R. 35 (Defendant's Exhibit A. Certified copy of EL AL’s Inter-

national Passenger Rules and Fares Tariff, NTA (A) No. 324, 9C.A.B.

No. 530, Rule 55 LiaBiLiTy OF CARRIERS “(B) LAWS AND PROVISIONS

APPLICABLE (1) Carriage hereunder is subject to the rules and limitations

relating to liability established by the Convention. . . unless such car-

riage is not ‘international carriage’ as defined by the Convention.”).

23 —- Based on the doctrine that a treaty construction resulting if a

favorable recognition of rights under the treaty supersedes a construction

resulting in a restriction of rights, the search of Tseng could be consid-

ered an “accident” to bring her claim within Article 17. See, e.g., De

Geofroy, 133 U.S. at 271 (just as the District of Columbia was considered

a “state” under the terms of a treaty between the United States and

France, Tseng’s claims may be considered the result of an “accident”

under the Convention). See Thach v. China Airlines, Ltd., No. 95 Civ.

8468, 1997 WL 282254 (S.D.N.Y. May 27, 1997); Uwagbai v. Alitalia

Airlines, 24 Av. Cas. (CCH) 17,811 (D. Mass. Jan. 20, 1994). Compare

Krys v. Lufthansa German Airlines, 119 F.3d 1515 (11th Cir.), reh'g

denied en banc, 130 F.3d 446 (11th Cir. 1997), cert. denied, 118 S. Ct.

1042 (1998); DeMarines v. KLM Royal Dutch Airlines, 580 F.2d 1193 (3d

Cir. 1978); Curley v. American Airlines, Inc., 846 F. Supp. 280 (S.D.N.Y.

1994); Walker v. Eastern Airlines, 785 F. Supp. 1168 (S.D.N.Y. 1992).

Tseng still, however, would be entitled to no recovery from EL

AL, because she did not sustain bodily injury. See Floyd, 499 U.S. 530.

, —_ ——— | _—

747 F. Supp. at 676. Accord Finkelstein v. Trans World Air-

lines, Inc., 1S Av. Cas. (CCH) 17,379, 17,380 (N.Y. Sup. Ct.

Sept. 28, 1978) (“To the extent that some Federal decisions

seem to indicate the viability of independent tort actions and

the non-exclusivity of the Convention this Court, first, is not

bound thereby and, second, does not agree therewith.”).

Allowing Tseng recovery for harm occurring in the course of

international transportation required the Court to distort the

text of Articles 1, 17 and 24 and to disregard the context in

which the words in these articles were used by the drafters.

As noted by the Court in Saks:

Until Article 17 of the Warsaw Convention is changed by

the signatories, it cannot be stretched to impose carrier

liability for injuries that are not caused by accidents. It

remains “our duty to enforce the treaties of the United

States, whatever they may be, and. . . the Warsaw Con-

vention remains the supreme law of the land.”

Saks, 470 U.S. at 406 (quoting Reed, 555 F.2d at 1093)

(emphasis added).

b. The lower courts similarly have misread the

Article 24 phrase “any action for damages, how-

ever founded” to hold that a passenger’s cause of

action may be “founded” on state law

As noted by the court below in another of its decisions,

Lockerbie, 928 F.2d at 1282, the “however founded” language

has been subject to two interpretations. The incorrect view is

that a state law cause of action, “however founded,” may be

brought against the carrier, and that the Convention provides

only the exclusive remedies.** The correct, and the only

*# The Eleventh Circuit noted the divergent analyses of Article 24

by district and appellate courts. See Floyd v. Eastern Airlines, inc., 872

F.2d 1462, 1482 n33 (11th Cir. 1989), aff'd, 499 U.S. 530 (1991); see

also In re Mexico City Aircrash of Oct. 31, 1979, 708 F.2d 400, 414 n25

(9th Cir. 1983); Tokio Marine & Fire Ins. Co. v. McDonnell Douglas

Corp., 617 F.2d 936, 942 (2d Cir. 1980); In re Air Crash Disaster at

sensible, construction of Articles 17 and 24 is that a plain-

tiff, whatever his damages, cannot circumvent the Conven-

tion by bringing an action other than one under Article 17.

See Potter, 98 F.3d 881; Jack, 820 F. Supp. at 1223, 1225;

Stanford v. Kuwait Airlines Corp., 705 F. Supp. 142, 144

(S.D.N.Y. 1989) (“[T]he explicit language of the Convention

_ , specifies that an action arising from international air car-

riage, ‘however founded, can only be brought subject to the

conditions and limits set out in this Convention’.”).

The “however founded” phrase in Article 24 derives from

the drafters’ concern that certain heirs of a deceased pas-

senger would lack standing under Article 17 because the Con-

vention provides for a right to sue in contract but not in tort.

See, e.g., Potter, 98 F.3d at 886 (recognizing that prior to the

Convention and under the law of certain countries, passengers

who were injured could sue for damages in either tort or con-

tract but the Convention's express cause of action requires

that they proceed only in contract); see also Jack, 820 F.

Supp. at 1222; René H. Mankiewicz, The Liability Regime of

the International Air Carrier 92, 93 (1981) (citations omit-

ted). Compare Benjamins, 572 F.2d at 918 (posited alternative

reading that the “however founded” language could have

referred to “a number of possible factual bases for the envi-

sioned action”).

The phrase was intended to eliminate multiple actions and

liabilities that could arise in some signatory nations where the

carrier's liability can be based on principles of either tort or

contract law. The Lockerbie court surmised that, based upon

the drafting history of Article 24, the phrase “however

founded” was intended to “prevent an injured party’s relatives

Gander, Newfoundland on Dec. 12, 1985, 660 F. Supp. 1202, 1221 & n43

(W.D. Ky. 1987); Rhymes v. Arrow Air, Inc., 636 F. Supp. 737, 740 (S.D.

Fla. 1986); G. Nathan Calkins, Jr., The Cause of Action Under the War-

saw Convention, Part Il, 26 J. Air. L. & Com. 323, 327-28 (Autumn

1959): H. Drion, Limitations of Liability in International Air Law 70-71

(1954).

from bringing an independent action, outside the contract

action which the injured person himself might bring, for loss

of support.” Lockerbie, 928 F.2d at 1285. Accord Jack, 820

F. Supp. at 1222 (contract/tort distinction eliminated in favor

of cause of action “under the contract-law-based Conven-

tion”).

A leading commentator’s discussion of the text of Article

24 illustrates the misinterpretation of Articles 17 and 24 by

the lower courts:

The Convention efficiently prevents the application of its

liability rules from being circumvented by an action in

tort by providing in Article 24 that any action for dam-

age under Articles 17 to 19, ‘however founded’, i.e.

whether in contract or in tort, ‘can only be brought sub-

ject to the conditions and limits set out in this Conven-

tion’; . . . . Consequently, ‘the Convention cuts down

on common law causes of action’; ... .

Mankiewicz at 93 (citations omitted) (emphasis added). Accord

Potter, 98 F.3d at 886 & n12; see also In re Air Crash Disaster

at Warsaw, Poland on Mar. 14, 1980, 535 F. Supp. 833, 844-45

(E.D.N.Y. 1982) (“the Warsaw Convention specifically controls

and exclusively governs any and all claims for damages arising

out of the death or injury of a passenger engaged in interna-

tional air transportation, and plaintiffs cannot maintain a sep-

arate wrongful death action for damages under California

law”), aff'd, 705 F.2d 85 (2d Cir.), cert. denied, 464 U.S. 845

(1983).

Hence, courts improperly have parsed and strained the

reading of the “however founded” phrase. The phrase was

intended only to confirm that the Convention is the sole

source of a passenger's right to sue for personal injury or

death, irrespective of whether there would be a right under the

laws of the various nations absent the Convention.

3. The preamble and other articles demonstrate the

uniform and comprehensive framework regu-

lating carrier liability during international

transportation by air

The reference to international uniformity of law in the

treaty’s preamble, the scheme of checks and balances to deter-

mine carrier liability and the articles expressly reserving only

certain areas for local law demonstrate that the Convention

provides the exclusive basis for damages against a carrier.

a. The preamble makes clear that the Con-

vention unifies the rules for the subjects

addressed

The Court should uphold the purpose and object of the

Convention as stated in the text of the Preamble:

Having recognized the advantage of regulating in a uni-

form manner the conditions of international transporta-

tion by air in respect of the documents used for such

transportation and of the liability of the carrier, . . .

49 Stat. 3014 (1934) (emphasis added).

The preamble proclaims, clearly and plainly, the drafters’

express desire for uniform and exclusive application of the

Convention to international transportation. See Eggink v.

Trans World Airlines, Inc., 22 Av. Cas. (CCH) 17,731, 17,733,

1990 WL 6553 (S.D.N.Y. Jan. 22, 1990) (recognizing the

Preamble’s express declaration of the “central purpose of the

Convention”). Accord In the Case Concerning Rights of

Nationals of the United States of America in Morocco (France

v. United States), 1952 1.C.J. 176, 196, 1952 WL 51 (1.C.J.)

(citations omitted) (“The purposes and objects . . . were

stated in its Preamble. . . . In these circumstances, the Court

can not adopt a construction by implication. . . . ‘It is the

duty of the Court to interpret the Treaties, not revise

them.’ ”).

b. The subject of “Liability of the Carrier” is

regulated under its own chapter

The Liability Chapter of the Convention guides the Court

as to the only circumstances of carrier liability. See Abnett

(Pet. App. 52a-56a). Articles 17 through 25, when read

sequentially, regulate in a uniform manner whether a carrier

will be liable for a claim by a passenger:

Article 17 Provides when the carrier “shall be

liable” for passenger injury or death.

Article 18 Provides when the carrier “shall be

liable” for checked baggage and cargo.

Article 19 Provides when the carrier “shall be

liable” for delay.

Article 20 Provides an exception to the presumptive

liability of the carrier under Article 17.

Article 21 Provides another exception to the pre-

sumptive liability, in whole or in part,

based on the contributory negligence of

the passenger.

Article 22 Provides the maximum of the carrier's

liability, subject to any exceptions to lia-

bility in the two preceding articles.

Article 23 Provides that any disclaimer of liability

of the carrier is “null and void.”

Article 24 Provides that any action by the passenger

will lie only under the Convention.

Article 25 Provides that all of the provisions limit-

ing the carrier’s liability are lost if there

is wilful misconduct on the part of the

Carrier.

This is the context in which Article 24 must be read. Arti-

cles 17, 18 and 19 create presumptive liability on the part of

the carrier, which may be negated, in whole or in part, under

Articles 20 and 21. Article 22 limits the damage exposure of

the carrier, unless Article 25 precludes the carrier from avail-

ing itself of the prescribed limit. Article 23 expressly voids

any attempt by the carrier to disclaim liability and Article 24,

in counterpoint, precludes a passenger from obtaining a

recovery outside the terms of the Convention.

Thus, the scheme of the Liability Chapter precludes the

Court from altering the delicately balanced rights of the pas-

senger against those of the carrier.

c. The judiciary may not invoke state law

where the Convention does not expressly so

provide

It is telling to note that, where the drafters of the Conven-

tion intended that “local” law apply to a particular matter, the

Convention expressly so states:

Article 21 — “If the carrier proves that the damage

was caused by or contributed to by the

negligence of the injured person the

court may, in accordance with the pro-

visions of its own law, exonerate the

carrier wholly or partly from his liabil-

ity.”

Article 24(2)— “In the cases covered by Article 17 the

provisions of the preceding paragraph

shall also apply, without prejudice to the

questions as to who are the persons who

have the right to bring suit and what are

their respective rights.”

Article 25(1)— “The carrier shall not be entitled to avail

himself of the provisions of this con-

vention which exclude or limit his lia-

bility, 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.”

Article 28(2)— “Questions of procedure shall be gov-

erned by the law of the court to which

the case is submitted.”

Article 29(2)—— “The method of calculating the period

of limitation shall be determined by the

law of the court to which the case is

submitted.”

See Boehringer-Mannheim, 737 F.2d at 458; Benjamins, 572

F.2d at 917; Reed, 555 F.2d at 1092; see also Potter, 98 F.3d at

886 (“where the drafters of the Convention concluded that uni-

formity could not be achieved, they provided expressly for

recourse to local law”), citing, Zicherman, 516 U.S. 217.

Article 17 does not contain any language permitting resort

to state law; it is Article 24(2) that directs courts when to

apply state law (to the issues of standing and compensable

damages), yet the court below erroneously read such a pro-

vision into Article 17 of the Convention.

Just as the Court in Chan rejected the majority of decisions

of the lower courts which had read an “adequate notice”

requirement into Article 3 of the Convention (490 U.S. at 134

n5), the Court should reject the decisions (including that of

the court below) which have read into Article 24 that a pas-

senger is entitled to resort to state substantive law where Arti-

cle 17 does not provide a right of recovery. Although

upholding the terms and conditions of the Convention as the

expression of the drafters’ intent may result in instances

where, as here, a passenger is not entitled to a right of recov-

ery under the Convention, such a result must be accepted.

Any other reading of the Convention would be at odds with

the drafters’ intentions. As the Court stated in Chan, “we

must thus be governed by the text [of the treaty].” 490 U.S. at

134. And here, both the text and the context within which the

written words are used preclude resort to state substantive law

for personal injury or death claims against the carrier.

SUPPLEMENTARY MEANS OF INTERPRETATION

OF THIS TREATY CONFIRM THAT THE WARSAW

CONVENTION IS EXCLUSIVE

The terms of the Convention are not ambiguous and a nat-

ural reading of Articles 1, 17 and 24, when read in conjunc-

tion with the Convention as a whole, compel the conclusion

that the cause of action under Article 17 is exclusive. The

Court nevertheless may look “beyond the written words to the

history of the treaty, the negotiations, and the practical con-

struction adopted by the parties” to confirm or ascertain the

meaning of Articles 1, 17 and 24, if it finds these articles to

be “difficult or ambiguous passages.” Volkswagenwerk, 486

U.S. at 700 (quoting Saks, 470 U.S. at 396, 400 (quoting

Choctaw Nation of Indians v. United States, 318 U.S. 423,

431-32 (1943))); see also Zicherman, 516 U.S. at 224-27

(drafting history (travaux préparatoires) confirmed the

Court’s interpretation); Floyd, 499 U.S. ai 535 (same).”°

Additional aids to interpretation of the Warsaw Convention

may include the post-ratification conduct and subsequent

25 But see Chan, 490 U.S. at 134 (in discussing whether to consider

drafting history of Warsaw Convention, the Court held where, as here,

the text is clear, the court has no power to insert an amendment); Saks,

470 U.S. at 400 (it is proper in interpreting a treaty to refer to the records

of its drafting and negotiation to resolve ambiguities in the text);

Santovincenzo, 284 U.S. at 40 (it is unnecessary to invoke liberal

construction of treaties where the instant case merely calls for a read-

ing of the provisions according to its terms; there is no applicable

principle which permits us to narrow the ordinary meaning of terms);

Vienna Convention on the Law of Treaties, Art. 32 (permitting resort to

drafting records only if the text “leaves the meaning ambiguous or

obscure; or. . . leads to a result which is manifestly absurd or unrea-

sonable”).

interpretation of the contracting parties to the Convention.

See, e.g., Zicherman, 516 U.S. at 217; Saks, 470 U.S. at 403.

Accord Vimar Seguros v. M/V Sky Reefer, 515 U.S. 528 (1995)

(declining to interpret Hague Rules in a manner contrary to

every other nation addressing the issue); Franklin Mint Corp.,

466 U.S. at 259 (the first 50 years of conduct of the con-

tracting parties cannot be ignored).

The Court also has accorded the opinions of “sister signa-

tories . . . great weight.” Saks, 470 U.S. at 404; see also

Floyd, 499 U.S. at 550; Chan, 490 U.S. at 135; Benjamins,

572 F.2d at 919. Accord Abnett (Pet. App. 48a-49a) (decisions

by foreign courts, where they are of the appropriate standing

and quality, may be helpful in pointing towards the inter-

pretation of the Convention).

A. The Drafting And Negotiating History Reinforce

The Conclusion That The Warsaw Convention Was

Intended To Be Exclusive

In 1923, the French government, recognizing the need to

adopt uniform rules relating to liability of air carriers, invited

nations of the world to attend an international conference in

Paris. Two years later, the French government distributed a

preliminary protocol in advance of the First International

Conference on Private Air Law. See John Jay Ide, The History

and Accomplishments of the International Technical Com-

mittee of Aerial Legal Experts (C.1.T.E.J.A.), 3 J. Air L. 26,

27-29 (1932).

At the 1925 Paris Conference, the official delegates from

44 countries, along with observers from the United States,

Japan and Hungary, approved a draft convention. In addition,

the delegates created a commission of international aviation

experts, known as the Comité International Technique

d’Experts Juridiques Aeriens (“CITEJA”), which continued

to meet and revise the draft convention and to investigate

other issues of private air law.

The draft convention in 1925 included the precursor to ~

Articles 17 and 20 (Article 5 below).** From 1925 through

1928, the CITEJA members convened and revised the draft

convention. At the Third Session of CITEJA, held in 1928,

the draft convention contained three major chapters: the first,

addressed definitions and objectives; the second, documents

of carriage; and the third, liability rules relating to the carrier.

G. Nathan Calkins, Jr., The Cause of Action Under the War-

saw Convention, Part I, 217, 221 (Summer 1959). All sources

of carrier liability appeared in Article 22 (now Article 17).”’

Article 5

{1925 Conference]

The carrier is liable for

accidents, losses, break-

downs, and delays. \t is not

liable if it can prove that it

has taken reasonable mea-

Article 22

[outset of Third Session)

The carrier shall be liable

for damage during carriage:

(a) In case of death, wound-

ing, or other physical bodily

injury of every description

sures designed to preempt. trereg by a traveler;

damage... .

1. The Warsaw Conference narrowed the 1928 pre-

liminary draft of Article 17, which had proposed

to make the carrier liable for “death, wounding

or other bodily injury of every description suf-

fered by a traveler”

During the Third Session, Article 22 became Article 21 (set

forth below)** and liability was narrowed from encompassing

injury of “every description suffered by a traveler” to simply

2% The Saks decision provides the language from the 1925 Con-

férence Internationale de Droit Privé Aérien in Paris. 470 U.S. at 401

(emphasis added).

27 - Jack, 820 F. Supp. at 1221-22 (emphasis added) (quoting

Calkins, Part I at 221 (reprinting and translating preliminary draft of

convention at outset of Third Session)).

2 ~~ Saks, 470 U.S. at 401 (quoting Warsaw Minutes at 264-65).

“injury suffered by a passenger.” The following year at the

Warsaw Conference,” the delegates inserted the requirement

of an accident and, in effect, further narrowed the terms of

liability for death or bodily injury to the current Article 17,°°

i.e., lability for harm “suffered by a passenger, if the accident

which caused the damage so sustained took place on board the

aircraft or in the course of any of the operations of embarking

or disembarking.” The qualifying accident clause did not even

appear until the end of the Warsaw Conference. Warsaw Min-

utes at 205; Jack, 820 F. Supp. at 1225.

Article 21 Article 17

[Warsaw Conference} [The Warsaw Convention]

The carrier shall be liable = The carrier shall be liable

for damage sustained during for damage sustained in the

Carriage: event of the death or wound-

ing of a passenger or any

other bodily injury suffered

by a passenger, if the accident

which caused the damage so

sustained took place on board

the aircraft or in the course

of any of the operations of

embarking or disembarking.

49 Stat. 3018 (1934).

(1) im the case of death,

wounding, or any other bod-

ily injury suffered by a trav-

eler,

*® In 1929, at the Second International Conference on Private Air

Law held in Warsaw, Poland (the “Warsaw Conference”), the Convention

was born. The Convention was signed by 23 states: it entered into force

on February 13, 1933, 90 days after the deposit of the instruments of rat-

ification by five states. By the end of 1933, most European nations had

ratified the Convention and on October 29, 1934, the United States

became a High Contracting Party. Lockerbie, 928 F.2d at 1271: see also

Franklin Mint Corp., 466 U.S. at 246-47.

inte three separate articles, now Articles 17, 18 and 19, “primarily because

delegates thought that liability for baggage should commence upon deliv-

ery to the carrier, whereas liability for passengers should commence when

the passengers later embark upon the aircraft.” Saks, 470 U.S. at 402.

The narrowing of the circumstances when the carrier “shall

be liable” shows that the Convention affirmatively limits car-

rier liability to injuries which are the result of an “accident”

sustained during international transportation.

2. The evolution of Article 24 confirms that any

action against the carrier must be based on the

Convention

Comparing the earlier drafts of Article 24 (Articles 26 and

27 below).*! with the draft presented at the Warsaw Confer-

ence”? and its present language further validates a finding of

exclusivity:

Article 26

Article 27

[outset of Third Session in 1928]

In case of accident, loss,

damage or delay, the liability

action may not be brought

against the carrier except on

the basis of this convention,

unless the damage arises

through an intentional unlaw-

ful act as to which he bears

In case of death of the per-

son holding the cause of

action, every liability action,

however founded[,)] may be

exercised, within the terms

and limits provided by this

convention, by those persons

to whom such action belongs

in accordance with the national

law of the deceased or, in

default of such law, in accor-

dance with the law of the

place of his last permanent

residence.

Calkins, Part I at 221-23 (preliminary draft of convention at out-

set of Third Session) (emphasis added).

32 Warsaw Minutes at 265.

——— ys

Article 24

[Warsaw Conference]

In the cases provided for

in Article 21 [now Articles

17, 18 and 19], even in the

case of death of the interested

party, any liability action,

however founded, can be

brought only under the con-

ditions and limits set forth by

the present Convention.

If the damage arises from

an intentional illicit act for

which the carrier is responsi-

ble, he will not have the right

to avail himself of the provi-

sions of this Convention,

which exclude in all or in part

his direct liability or that

derived from the faults of his

servants.

Article 24

[The Warsaw Convention]

(1) In the cases covered

by articles 18 and 19 any

action for damages, however

founded, can only be brought

subject to the conditions and

limits set out in this conven-

tion.

(2) In the cases covered by

article 17 the provisions of

the preceding paragraph shall

also apply, without prejudice

to the questions as to who are

the persons who have the

right to bring suit and what

are their respective rights. 49

Stat. 3020 (1934).

Article 26 of the CITEJA draft stated that in the case of

accident, damage, loss or delay, the liability action could only

be brought “on the basis of this convention” and, thus, that

the Convention would be the exclusive basis for a passenger's

recovery.*’ Article 27 of the draft provided that for death

actions, “every liability action, however founded, may be

exercised within the terms and limits provided by this Con-

vention... .”*4

** ‘The fact that the delegates chose to confine liability to the terms

of the Convention, rather than expand carrier liability to include national

law, demonstrates their goal of limiting the circumstances of liability and

undermines the lower court's interpretation of Articles 17 and 24.

“* As discussed supra at 22, the “however founded” language was

inserted to resolve the issue of the standing of the heirs of a deceased

The CITEJA drafters subsequently merged Articles 26 and

27 into one article, which became Article 24.°° The CITEJA

Reporter explained the purpose of this merger:

Since there had been eliminated from Article 27 the part

relating to the person who would be entitled to bring suit

on the death of the holder of the right, the article no

longer contained more than a declaration that all

action[{s] must be brought on the basis of the convention.

This was a repetition of the same idea contained in Arti-

cle 26. The drafting subcommittee had therefore com-

bined the two articles in a new Article 24. . .

Jack, 820 F. Supp. at 1223 (quoting Calkins, Part I at 206 (Pro-

ceedings of the Third Session of CITEJA 66-67)) (emphasis

added).

Thus. the draft continued to emphasize that the passenger's

cause of action “can be brought only under the conditions and

limits set forth by the present Convention.” This history

shows that the editing committee and CITEJA members

viewed the predecessor articles to Article 24 as plainly requir-

ing that suits be brought against the carrier solely “on the

basis of the Convention.” Jack, 820 F. Supp. at 1223 (com-

prehensive analysis of the drafting history confirms that the

word “conditions” in Article 24 should be read as meaning the

“fundamental basis,” such that any action for damages could

only be brought “on the basis of the Convention,” i.¢., the

Convention is exclusive).

passenger who have no contractual relationship with the carrier and tech-

nically could not have a right of action under the contract-based regime

of the Convention.

35 Warsaw Minutes at 265 (preliminary draft of convention).

3. The delegates at the Warsaw Conference debated

the period of carriage that would implicate

carrier liability; however, presumptive and pre-

emptive liability remained unchanged

The delegates at the Warsaw Conference must have

accepted that th» Convention would be presumptive and

exclusive, as evi. :nced by the delegates’ focus on narrowing

the “period of carriage”—i.e., whether carriage extends “from

the moment when travelers, goods or baggage enter into the

aerodrome of departure to the moment when they leave the

aerodrome of destination.” Warsaw Minutes at 264.°°

The Warsaw Conference minutes are probably “more

notable” for their lack of discussion regarding preemption.

Jack, 820 F. Supp. at 1225. The one and only comment

expressly relating to the preemptive language of Article 24

was by the British Delegate, the only representative of a com-

mon law nation, who stated:

We have at the beginning of the article: “. _ . any lia-

bility action however founded can only be brought under

the conditions and limits provided for by the present

Convention.”

It's a very important stipulation which touches the very

substance of the Convention, because this excludes

recourse to common law; originally, it was a separate

article.

Warsaw Minutes at 213 (emphasis added); see also id. at 65

(“In any case, recourse to national law must be ruled out.”), 66

(“we are absolutely opposed to a formula that would lead to the

application of national law”), 175-76 (the drafters rejected the

ferent periods of carriage for passenger and cargo. The drafters realized

that a carrier has control over goods at a different time than it would have

“direction and supervision” over a passenger. Martinez Hernandez v. Air

France, 545 F.2d 279, 282 (ist Cir. 1976), cert. denied, 430 U.S. 950

(1977).

Japanese Delegate’s proposal which would provide for “free-

dom of choice” to apply a prior agreement for dispute resolu-

tion).

The drafters intended the Convention to provide the exclu-

sive cause of action for any injury or death claim against the

carrier, so long as the harmful event occurs either on board

the aircraft or in the course of embarking or disembarking.

Commenting on the Warsaw Conference, the Chairman of the

U.S. Delegation at the Hague Conference to Amend the War-

saw Convention, 1955, stated:

There is nothing to indicate any change in direction

which would modify the original draft from a convention

creating a complete system of liability based on the con-

tract of carriage to one which merely imposed conditions

and limitations on rights of action otherwise accorded

under national law. On the contrary, the evidence is over-

whelming that the conference reaffirmed the theory

throughout that the convention would establish a system

of liability complete in itself. This evidence is of two

types. The first is the adoption of amendments to the

Citeja draft which are compatible only with the complete

liability system philosophy. The second is specific state-

ments made on the floor of the conference.

Calkins, Part I at 227 (emphasis added).

B. The Conduct Of The Contracting Nations Has Been

Consistent With The Signatories’ Intent That The

Warsaw Convention Provides The Exclusive Cause Of

Action

After 1929, representatives of signatory nations convened

on several occasions to amend the Warsaw Convention and to

clarify provisions that may have been misinterpreted by the

parties. Amendments to the language of Articles 17 and 24

were proposed at two such Conferences, the Guatemala City

Conference in 1971 and the Montreal Conference in 1975.

These proposed amendments were to further the Signatories’

expectation that the Convention provides the exclusive basis

for a right of recovery for damages sustained in the course of

international transportation.

1. The Guatemala City Protocol reflects the signa-

tories’ understanding that the unamended War-

saw Convention makes a carrier potentially

liable only for “accidents” and that the Conven-

tion is exclusive

Although the Guatemala City Protocol is not in force, the

Court has referred to the amendments adopted at the 1971

Guatemala City International Conference on Air Law to clar-

ify the meaning of the term “accident” in Article 17. Saks,

470 U.S. at 403-04. The Guatemala City delegates approved

an amendment to Article 17°’ that would impose liability on

a carrier for an “event which caused the death or injury,”

rather than for an “accident which caused” the passenger's

injury. /d. at 403. The Guatemala City delegates discussed the

fact that the term “event” expanded carrier liability to cover

acts that may not be considered accidents. Saks, 470 U.S. at

403-04. The delegates also added a clause exempting the car-

rier from liability if the death or injury resulted “solely from

the state of health of the passenger.” /d.

In addition to amending Article 17, the delegates at

Guatemala City amended Article 24(2). The phrase “in the

cases covered by Article 17” was replaced with “in the car-

riage of passengers and baggage.” This change in language

was not intended to be a substantive change, but rather to

reflect the consolidation of baggage actions with the pas-

senger injury actions. The delegates also revised the “however

founded” clause in Article 24 to read: “any action for dam-

*? See International Civil Aviation Organization, 2 Documents of

the International Conference on Air Law, Guatemala City, ICAO Doc.

9040-LC/167-2 at 189 (1972).

ages, however founded, whether under this Convention or

in contract or in tort or otherwise, . . . .” This additional

language is consistent with the signatories’ construction of

Article 24 as exclusive.**

The unamended Warsaw Convention limits carrier liability

exclusively to injuries caused by “accidents” in the course of

international transportation; carriers are not liable for

“events” other than “accidents” and there is no right of

recourse to national law.

2. Montreal Protocol No. 4 furthers the exclusivity

objective, while leaving Article 17 unchanged

Montreal Protocol No. 4, drafted in 1975, changes the lan-

guage in Article 24; Montreal Protocol No. 4 does not change

Article 17.°° If ratified, Article 24, in relevant part, will be

amended to read:

1. In the carriage of passengers and baggage, any action

for damages, ..owever founded, can only be brought sub-

ject to the conditions and limits set out in this Conven-

tion, without prejudice to the question as to who are the

persons who have the right to bring suit and what are

their respective rights.

— 38 The amendments in the Guatemala City Protocol were later

incorporated in Montreal Protocol No. 3 (which is not expected to be rat-

ified by the Senate). When Montreal Protocol No. 3 was being considered

for ratification by the Senate, the Committee on Foreign Relations

reported that the re-drafted Article 24 “makes clear that actions for dam-

ages whether founded on the ‘Convention, or in contract or in tort or oth-

erwise’ can only be brought subject to the conditions and limits set out

in the Convention.” S. Exec. Rep. No. 45, 97th Cong., Ist Sess. 12

(1981); Accord S. Exec. Rep. No. 21, 101st Cong. 2d Sess. 15 (1990).

39 The Solicitor General’s Office has advised that the United States

is actively considering ratifying Montreal Protocol No. 4, which adopts

the Hague Protocol amendments (but not the Guatemala City Protocol

amendments). See Letter of Seth Waxman, Solicitor General, Counsel of

Record for the United States, to the Court dated July 1, 1998.

International Civil Aviation Organization, 2 Documents of the

International Conference on Air Law, Montreal, 1CAO Doc.

9154-LC/174-2 at 273 (1975).

Thus, the amended Article 24, if ratified, continues to use

the “however founded” language, but deletes “in the cases

covered by” in favor of “in the carriage of.” Irrespective of

whether the Senate ratifies Montreal Protocol No. 4, however,

the Protocol cannot “govern the disposition of this case”

(Saks, 470 U.S. at 403), i.e., whether the Warsaw Convention

is exclusive where there is no Article 17 accident or no bod-

ily injury. See also ATA Amicus Br. at 5 (“The lower court's

reasoning misconstrues the scope of the Warsaw Convention,

as applied by the courts of this country, and effectively

rewrites Article 17.”).

Even if the Senate ratifies Montreal Protocol No. 4, the

issue on which the Court granted certiorari will remain unan-

swered. The Court has twice declined to address the issue of

the exclusivity of the Convention. See “loyd, 499 U.S. 530:

Saks, 470 U.S. 392. If ratified, Montreal Protocol No. 4 will

be “a list of amendments to the Warsaw Convention” gov-

erning transportation only between those States adhering to

the Protocol.*° Hyosung (Am.), Inc. v. Japan Air Lines Co.,

624 F. Supp. 727, 728 (S.D.N.Y. 1985) (addressing the Hague

Protocol, to which the United States will adhere upon ratifi-

cation of Montreal Protocol No. 4). Article 17, however, will

not be one of those amendments.

vention have adopted Montreal Protocol No. 4. If and when the Senate

ratifies the Protocol, the United States remains in treaty relations with

signatories to the unamended Convention, whether or not those countries

adopt Montreal Protocol No. 4. Similarly, the United States will also

remain in treaty relations with other signatories which adhere to the Con-

vention as amended by Hague, but not Montreal Protocol No. 4. The

common denominator among all signatory States, however, is the War-

saw Convention. See Jn re Korean Air Lines Disaster of Sept. 1, 1983,

664 F. Supp. 1463, 1469 (D.D.C. 1985), aff'd, 829 F.2d 1171 (D.C. Cir.

1987) (unrelated issue), aff'd, 490 U.S. 122 (1989) (same). Thus, the

issue of exclusivity remains ripe for resolution by the Court.

Resolution of the exclusivity issue, therefore, affects all

international transportation by air irrespective of whether

courts are applying the unamended Warsaw Convention or

Montreal Protocol No. 4. The Court should answer the ex >!v

sivity question presented in light of the Convention's

expressed goals of uniformity and certainty. The Court should

declare that the Warsaw Convention, whether unamended or

amended pursuant to Montreal Protocol No. 4, provides the

exclusive cause of action.

C. The Court Should Find The Adnett Decision By The

Court Of Last Resort Of A Sister Signatory Persua-

sive

In Abnett v. British Airways pic, ({1997] 1 All E.R. 193

(H.L. 1996) (U.K.)), the House of Lords of the United King-

dom, a sister signatory to the Warsaw Convention, resolved

the immediate issue before the Court. The House of Lords,

finding the Warsaw Convention exclusive for actions brought

in the United Kingdom of Great Britain and Northern Ireland,

concluded that “where the Convention has not provided a

remedy, no remedy is available.” (Pet. App. 65a). Employing

the tools of treaty interpretation, the House of Lords held that

“in all questions relating to the carrier's liability, it is the pro-

visions of the Convention which apply and that the passenger

does not have access to any other remedies, whether under the

common law or otherwise. . . .” (Pet. App. 55a).

Considering the “whole purpose” of Article 17, the Court

concluded that the Warsaw Convention 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 international carriage by air.” (Pet.

App 55a).

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 carrier.

Id.

Placing the provisions in their historical context, the Court

noted that Article 23 nullifies “[a]ny provision tending to

relieve the carrier of liability,” a generally accepted practice

in the 1920's, a time when the Convention was in its genesis.

(Pet. App. 54a); see supra at 18 n19. As noted by the House

of Lords:

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 foundin. . . Article 24. This Article provides 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.

ld.

The compromise made was that the carrier surrendered its

freedom to exclude or limit liability, but the passenger would

be restricted to bringing an action for damages solely under

the conditions and limits of the Convention.*' Thus, based on

the text of the Convention and its intended purpose, the

House of Lords decreed that the Convention was intended to

be uniform and exclusive of any resort to domestic law. As

stated in Abnett:

The idea that an action for damages may be brought by

a passenger against the carrier outside the convention in

Article 25 is the result of another “compromise” by the dele-

gates, which precludes the carrier from availing itself of the liability

limits of Article 22 if there is “wilful misconduct” on the part of the

carrier.

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 [17 and 24] were designed to

create.

Id.

The House of Lords concluded that the Warsaw Convention

“was not designed” to provide a recovery for “all losses.”

(Pet. App. 64a). “It was designed instead to define those

situations in which compensation was to be available.” /d.

Tseng’s situation is one for which no compensation is avail-

able.

CONCLUSION

While courts do not want to deprive any passenger of a

right of recovery, this treaty was not intended to provide full

recovery for every alleged harm which may occur during

international transportation by air. Floyd, 499 U.S. at 544-45.

The expressed need for uniformity on the subject of carrier

liability in international air transportation is frustrated when

courts permit recovery outside the Convention, particularly

with respect to an issue as integral to air transport as security.

The Court should hold that neither EL AL nor any other car-

rier may be subject to over fifty distinct causes of action for

a security search, such as was conducted by EL AL in this

case.

The judiciary must uphold the terms and conditions of a

treaty. Because the Warsaw Convention exclusively governs

Tseng’s personal injury claim against EL AL and because her

claim fails to meet the conditions precedent to recovery under

Article 17, the Court should reverse the judgment of the Court

of Appeals.

Respectfully submitted,

DIANE WESTWOOD WILSON

Counsel of Record

CONDON & FORSYTH LLP

1251 Avenue of the Americas

New York, New York 10020

(212) 921-5100

Of Counsel: Attorneys for Petitioner

' EL AL ISRAEL AIRLINES, LTD.

Judith R. Nemsick

Debra A. Shields

Joanna L. Geraghty

Dated: July 15, 1998

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.