Respondents Brief — El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng
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FILED
JUL 29 1996
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A
No. 97-475
OFFICE OF THE CLERK
SUPREME COURT, U.S.
In The
Supreme Court of the Hnited States
~—}-
October Term, 1997
EL AL ISRAEL AIRLINES, LTD.,
Petitioner,
vs.
TSUI YUAN TSENG,
Respondent.
On Writ of Certiorari to the United States
Court of Appeals for the Second Circuit
BRIEF FOR RESPONDENT
ROBERT H. SILK
Counsel for Respondent
401 Broadway
New York, New York 10013-3005
(212) 941-5964
147584
(800) 274-3321 * (800) 359-6859 Magia
A DIVISION OF COUNSEL PRESS
TABLE OF CONTENTS
CS wc cvcicvccdséetccetchdnanducedongneennen l
Summary of Respondent’s Argument .............. 3
Argument for Respondent .........cccceccccesees 5
I. ItIs An Anomalous And Impermissible Absurdity
To Conclude On The Basis Of The Convention's
Imposition Of Liability On Airlines For Accidental
Bodily Injuries A Warrant For Them To Imprison,
Assault And Batter Their Passengers On State
Territory Free Of The Civil Accountability
Tortfeasors Owe To Their Victims Under State
BM, oc ck ctncedeaddsbueeababeeumebenenen 5
Il. Petitioner's Conduct Was Not Accidental And This
Eliminates Article 17 As A Factor In This Case.
ce eantedannweeb anu csen ties 11
III. Article 24(2) Plays A Defining Role By Not
Including Intentional Tort Within The Scope Of
The Convention’s Exclusivity But Instead
Limiting Exclusivity In Personal Injury Cases To
Accidents Covered By Article 17. ........... 20
IV. The Supposed Need For “Uniformity” In
Construing The Convention To Render It The
Exclusive Source Of Remedy Against Airlines Has
il
Contents
Page
Been Rejected By This Court In Favor Of Leaving
Specification Of The Harm Legally Cognizable
To The Domestic Law Applicable Under The
Forum’s Choice-Of-Law Rules. ............. 22
V. Contrary To The Governing Law Petitioner Would
Read Into In The Convention A Ban On Recourse
To State Law For Damages Caused By Non-
accidental Willful Tort Which The Signatories Had
Dt ttc chine dwbawtdeeanskcesacuceces 27
VI. Preemption Of The States’ Common Law Of
Personal Injury Torts Is Disfavored And Contrary
To The Presumption Against It. ............. 31
VII. Article 25 Expressly Leaves Airlines Exposed To
Liability For Willful Wrongdoing And Mandates
Local Law As The Law Of Choice For Willful
cite. eleven sabes wdeeesesees ce 33
VII. The Recent Enactment Of Montreal Protocol No.
4 Is Not Only (A) Prospective In Effect Only But
Also (B) Confirms The Nonexclusivity Of The
Warsaw Convention As A Bar To This Case. .. 37
IX. A False Fear Is Subtly Promoted By Petitioner In
The “Conclusion” Of Its Brief And By Petitioner's
Amicus Air Transport Association (Ata) That The
Judgment Below Compromises Aircraft And
Passenger Safety And Passenger Rights, But The
Opposite Is True And Ringing That Alarm Is A
Distracting Smokescreen Scare Tactic. ....... 39
Contents
Page
A. Aijrcraft and Passenger Security and DOT
Regulation, 14 C.F.R. § 129.25 ........ 39
Sk SP GED Séucvbducbiscesencues 42
GD cat, Gilde cia Citi eee Red O a e 43
iv
Table of Citations
Page
TABLE OF CITATIONS
Cases Cited:
Abnett v. British Airways PLC | All E.R. 193 (H.L. 12
OE, SHED occccéccdecovecescésaee 22, 23, 24, 25
Aetna Casualty & Surety Co. v. General Dynamics Corp..,
Sa Guus CS Ge Gs GOED dvcccccdecdconsence 16
Air Express International, Inc. v. Aerovias de Mexico, 977
FP. Sapp. 1598 (WD. Fin. 1997) 2. ccccccccccess 25
Air France v. Saks, 470 U.S. 392 (1985) ........... passim
Allinger v. City of Utica, 226 A.D. 2d 1118, 641 N.Y.S.
ee GO UE Sud cccuccadbWebcdcaduntaeonscwas 36
The Amiable Isabella, 6 Wheat. 1, 71 (1821) ........ 27
Bacardi Corp. of America v. Domenech, 311 U.S. 150,
Se Oh es SED bc cbdcadedéacaedacchets 27, 28, 36
Brink's Limited v. South African Airways, 93 F.3d 1022
GEE cncddcvenscoateadyseikiednineustesens 25
Broughton v. State of New York, 37 N.Y. 2d 451, 373
N.Y.S. 2d 87 (1975), cert. den. sub nom., Schanbarger
v. Kellogg, 423 U.S. 929, 96 S. Ct. 277 (1975) ... 5, 6
Brown v. State of New York, 89 N.Y. 2d 172 (1996) .. 28
Table of Citations
Page
Budgar v. State of New York, 98 Misc. 2d 588, 414 N.Y.S.
ep ED Sudavebdeveadecunedcackencsecené 6
Byrd v. New York City Transit Authority, 172 A.D. 2d
Dee Ge Oe A GP CUUED ccccucscoesseses 36
Chan v. Korean Air Lines, Ltd., 490 U.S. 122 (1989)
pedbGdtesnaces sboteseeuetcasedevsvia 7, 8, 18, 21, 27
Cooper v. State, 150 Misc. 2d 635, 569 N.Y.S. 2d 889
SUED Redsebde Cdn bees esceodudndebadeatentee 36
Day v. Trans World Airlines, Inc., 528 F.2d 31 (1975),
a a ee ee EE node cubcoecssdévotwnduc 25
Dooley v. Korean Air Lines Co., Ltd., 97-704 (decided
EE se 6 hh ie neous seedoese 23
Eastern Airlines v. Floyd, 499 U.S. 530 (1991) ....13, 14, 20
Fishman v. Delta Air Lines, 132 F.3d 138 (1998) .... 12
Gade v. National Solid Wastes Management Association,
Dee Was GP GEE cen bdcdocusbeusessiecsedess 32
Geofroy v. Riggs, 133 U.S. 258 (1890) ......... 9, 27, 28, 36
Holt v. State of New York, 29 N.Y. 2d 573 (1971) .... 5, 6
In re Eastern Airlines, Inc., Engine Failure, Miami Int’!
Airport, 629 F. Supp. 307 (S.D. Fla. 1986) ....... 13
vi
Table of Citations
Page
Ismail v Cohen, 899 F.2d 183 (2d Cir. 1990) ........ 36
Jones v. State of New York, 33 N.Y. 2d 275, 352 N.Y.S.
Be Pe ED cccccdbedusctsateaneuetbinscies 6
Jones v. State of New York, 96 A.D. 2d 105, 468 N.Y.S.
ee ED. bbs ound in eecin ce viesesdinicebie da 6
Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494
U.S. $27, 110 S$. Ce. 1S7O (199)... ecw eees 37
Krys v. Lufthansa German Airlines, 119 F.3d 1515
GEESE -destvadedsnesbsevbachaderseeeteevetes 25, 35
Lancaster v. 46 NYL Partners, 228 A.D. 2d 133, 651
ee ED anes cccteihecnssiceteanne 37
Landgraf v. USI Film Products, 511 U.S. 244 (1994)
Seakatsevcunad) Setuubddsediuedadedweeleunnd 38
Laurie Marie M. v. Jeffrey T.M., 159 A.D. 2d 52, 559
Sens Ge ee ED o n.nds cebdasonecnenecuce an 6
Locke v. North Gateway Restaurant, Inc., 233 A.D. 2d
Sees Gee Cees Ae Oe CHUED cecvctviscescces 6, 35
Ludecke v. Watkins, 335 U.S. 160 (1948) ........... 8
MacDonald v. Air Canada, 439 F.2d 1402 (ist Cir.
PRs acwissves habeas daa neadtutesieeenertst 13
a EOOEEOEOeee OOOO
vil
Table of Citations
Maines v. Cronomer Val. Fire Dept., 50 N.Y. 2d 535,
GED FE Gas Se Ge COO ce cccccccccvescnesces
Masters v. Becker, 22 A.D. 2d 118, 254 N.Y.S. 2d 633
GED sc nhescesbckdce Pausen nabaeedensbudes as
Matter of Lichtenstein v. Board of Trustees of the Police
Pension Fund, 57 N.Y. 2d 1010 (1982) ..........
Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) .......
New York State Conference of Blue Cross & Blue Shield
Plans v. Travelers Insurance Company, 514 U.S. 645
SUE uncecsocddtbodcaveds sonsatbeeded scone
Noschese v. City of New York, 53 A.D. 2d 566, 384
Ps Se EE vo wade cad pednesonspeneduen
Oates v. New York Hospital, 131 A.D. 2d 368, 517 N.Y.S.
BP Ge Fe eb ancdkccectecéuebeursaresctecs
O'Connor v. United States, 479 U.S. 27 (1986) .....
People v. Cameron, 48 A.D. 2d 783, 369 N.Y.S. 2d 418
CUDTED cvcbcccescccsssccesovecsovecscoeesese
People v. Kuhn, 33 N.Y. 2d 203, 351 N.Y.S. 2d 649,
FED Fe BO FEE CURIED ccccccccvccecccececéacs
Pescatore v. Pan American World Airways, Inc., 97 F.3d
PED boa Absuran beSubnrssecdetd end esces ss
Page
36
vul
Table of Citations
Page
Phillips v. Washington Legal Foundation, __U.S.__ (96-
Seth OEE Kc Kc cncvtscdabbdaathvisateiesi 39
Potamkin Cadillac Corp. v. B.R.1. Coverage Corp., 38
Poe Gee Gee GD nbs bc kveee evi casccicss l
Potter v. Delta Airlines, 98 F.3d 881 (1996) .......... passim
Ritter v. Mutual Life Ins. Co., 169 U.S. 139 (1898) .. 8
Rubino v. Ramos, 226 A.D. 2d 912, 641 N.Y.S. 2d 409
CRUE weedeud ceabevontcdénuhbecetsvaotessees 6
Sale v. Haitian Centers Council, Inc., 509 U.S. 155
GEPOOD cedeneevidsicdctosbescbaiesteendessas 7
Schloendorff v. The Society of the New York Hospital (per
Cardozo, J.) 211 N.Y. 125, 105 N.E. 92 (1914) ... 6
Scholl v. City of Utica, 163 A.D. 2d 909, 559 N.Y.S. 2d
See SOE Cednvoederecases bones angbebceunsanes 6
Silkwood v. Kerr-McGee Corp. 464 U.S. 238 (1984) .10, 27, 32
Smith v. The Limited, 237 A.D. 2d 345, 655 N.Y.S. 2d
GOS GOOD cincrccvdecanccdedacdcuessdvnssades 6
Societe Nationale Industrialle Aerospatiale v. United
States District Court, 482 U.S. 522 (1987) ....... 8
ix
Table of Citations
Page
Sphere Drake Insurance Company v. 72 Centre Avenue
Corp., 238 A.D. 2d 574, 657 N.Y.S. 2d 65 (1997)
PPP eee rT Ty oer Te eT PeT ETE SULT OTT TT TCT ye 6
Staudacher v. City of Buffalo, 155 A.D. 2d 956, 547
4° SS aa} |. PASTE TIY TET TTT T Terie 6
St. Paul Fire & Marine Ins. Co. v. Northern Grain Co.,
365 F.2d 361 (8th Cir. 1966) ..............5055. 16
St. Paul Fire and Marine Insurance Company v. Warwick
Dyeing Corporation, 26 F.3d 1195 (1st Cir. 1994)
Sascwekbhetesavkdec ste weddwances rieseeeense 16
Technicon Electronics Corporation v. American Home
Assurance Company, 74 N.Y. 2d 66 (1989) ...... 16
Toop v. Ulysses Land Company, 237 U.S. 580, 35 S. Ct.
Fe PE bed bceshctnchanels devasbcasceserc< 8, 37
Trans World Airlines, Inc. v. Franklin Mint Corp., 466
es Gee GUUEED: cc bo eanbadbeues donbsosene scene 8
Tseng v. EL AL Israel Airlines, 122 F.3d 99 (2d Cir.
DE dunk pes dus eégoeeedeweeeen Kteeaabeeibee passim
Tseng v. El Al Israel Airlines, Ltd, 919 F. Supp. 155
CED neddee swecesencasd eeeénehsbonsececes 2, 12, 13
United National Insurance Co. v. Waterfront New York
Realty Corporation, 994 F.2d 105 (2d Cir 1993) .. 6
x
Table of Citations
Page
United States y. Bedford Associates, 713 F.2d 895 (2d
A OD dia tne sndididaciuees Crk Le: l
United States v. One Parcel of Real Estate, 41 F.3d 1448
OT NY Sho sk cbs ced cwkiaeei oe: 8
United States v. Stuart, 489 U.S. 653 (1989) ....... 18
United States v. X-Citement Video, Inc., 513 U.S. 64
actin Me re Oe Sa ee ae ee 8
Villanueva v. Comparetto, 180 A.D. 2d 627, 580 N.Y.S.
Oe WOE 55 sens se voseentvunisi se ees, 6
Vitale v Hagan, 132 A.D. 2d 468. 517 N.Y.S. 2d 725
(1987), mod. other grounds, 71 N.Y. 2d 955, 528
Pe WO OU CUNUD yawns cinveckevcceectsc.. 36
West v. American Telephone & Telegraph Co., 311 U.S.
PR aaah edtenaedandse lek de Sts) Sue 10
Zicherman v. Korean Air Lines Co.. Lid. 516 U.S. 217
WT. 60h net beeatidibiavcckia acute, Passim
Statutes Cited:
40 U.S.C. § 40105 ...... 0... 3,4
PO SI asin canveiva chasedoniddeckavkecn, 17
xi
Table of Citations
Page
Rules Cited:
oe ten SOO Ee eS lEn gat ae 39
og 8) EP EEE SEG ee ge remetal Tee ok 30
Other Authorities Cited:
PU WN DOU, a hab wuickscecicucilasc. 40
Pe SN MI a a os ae ae 40
PE I ete tee deo oe ce ne 39
WS I hd 4 hdd ded Ko kea cousins 39, 41
Pe es oe on 40
eee WF PNUE oe Nose cd dia cou iéc ceed 3
Article | of the Warsaw Convention ............... 14, 15
MEET, £4 tn scbuwe tech tueen cnc deeu ces uk passim
PO TED 23 9d nc dwiendcuns sacobinice ion 17, 18, 35
GUM ITT £4 Vauwdbouvcithniccbiioncé noose 10, 21, 38
SEMI soo Suede wiiedsc ) baubndicd Canwos ccuce. 20
xii
Table of Citations
Page
MNT Ais istic a passim
Article 25(1) ...... Eee keksses sehsehepeuepuck 25, 34, 35
EE dihad cS akivabacieerkcedce faeces. 34
Restatement Torts 2d § 892B(3)................... 3
Cassel’s French Dictionary (1962) 7, 324, 416, 520 .. 17
Giemulla/Schmidt, Warsaw Convention, Kluwer Law
International, The Hague, London, Boston, Suppl., 4
(October 1994), WC Art. 17, p. 10 .............. 17, 23
Goldhirsch, The Warsaw Convention Annotated, a Legal
Handbook, Martinus Nijhoff Publishers, Dordrecht/
I een ne 23, 34
RESPONDENT’S COUNTER-STATEMENT
OF THE NATURE OF THE CASE
Respondent, a New York citizen, was a clinical nutritionist
employed at a medical center for 22 years (A50-2)’. Looking to
vacation in Israel (A52-3), she had booked passage on the May
22nd, 1993, EL AL flight 008, New York to Tel Aviv, departing
JFK International Airport in New York City, where petitioner
maintained and operated terminal facilities for passengers. (JA 19-
20)”
Respondent appeared at petitioner’s JFK Terminal on the
scheduled date for her vacation flight. She presented her ticket and
American passport, was interviewed and escorted into a small room
by a uniformed male EL AL employee. She was confined in the
room for more than an hour before being released and allowed to
board the plane. (JA19-20)(A54-58,63).
Imprisonment was conceded. EL AL's Proposed Finding #3
(JA 23): '
Plaintiff was not free to leave the area where she was
interviewed unless she declined to board EL AL flight
008.
She was never given the option. The reason for detaining
respondent was never explained unless it was to add to pressure
on her to submit to what was to follow.
* “A” references are to Court of Appeals Joint Appendix. This material
has been lodged with the Clerk of the Court.
™ “JA” references are to Supreme Court Joint Appendix.
1. The very assertion by defendant of the Proposed Finding constitutes an
admission by that party proposing it. United States v. Bedford Associates, 713
F.2d 895, 905 (2d Cir. 1983). It can be used only against, not for, the defendant.
Potamkin Cadillac Corp. v. B.R.1. Coverage Corp., 38 F.3d 627, 633 (2d Cir.
1994).
2
Confined in the small room and unable~to leave, what did
follow was that Ms. Tseng was compelled to lower her blue jeans
to mid-hip level and expose herself to search by a uniformed female
EL AL employee. All parts of her body, from head to toe including
her most intimate “private parts” were subjected to hands-on
palpation for ten to fifteen minutes. Traumatized and humiliated,
petitioner was left feeling raped. (A59-62, 86-87). She had not
been given the choice to consent or not consent to the search, to
forego it, abandon the flight and freely leave the terminal and go
home, her body untouched.? She should have been. See People v.
Kuhn, 33 N.Y. 2d 203, 210, 351 N.Y.S. 2d 649, 654, 306 N.E.
2d 777, 780 (1973). Petitioner's characterization of Ms. Tseng's
response to this treatment in its “Nature of the Case” as not
“object[ing] to the search” should not connote that she consented
to it. She was given no choice. She was made to feel imprisoned,
was ordered about by EL AL’s uniformed security personnel and
cowed and intimidated into submission by their display of power.
(A61).
Q. How did you feel while you were undergoing this
sort of thing?
A. | was really furious, and I felt that I was like in
that little room, I was like raped.
Q. Why didn’t you just get up and walk out?
A. I felt '** I » as a prisoner in that little room. |
didn’t have frec\om to leave that room.
Q. Did they tell you could leave?
2. The District Court below, Tseng v. El Al Israel Airlines, Lid, 919 F.
Supp. 155, 158 (1996) noted that EL AL failed to define a reason for subjecting
Tseng to the particular treatment she received.
3. See footnote 33.
A. No.
Q. Did anybody tell you don’t have to be examined,
you can leave if you want?
A. No. Nobody tell me that. I was just like locked
up in this little room with all the police [sic] there.
Q. When you say there were police, who are you
referring to?
A. These people searching me and checking my
— taking out my things from my luggage.
Q. Why do you call them police?
A. They look like police. Like secret agent or
something.*
Consent given under duress is ineffective. Restatement Torts
2d § 892B(3). At a trial where the liability issues were explored,
Tseng’s proof was unchallenged. The procedures followed were
admittedly standard for EL AL. (A113, 118)
SUMMARY OF RESPONDENT’S ARGUMENT
1. It is impermissibly absurd and strains interpretative
reasoning beyond the breaking point to read into the very
Convention which subjects airlines to strict liability for accidental
bodily injuries an unspoken grant to airlines of freedom to
imprison, assault and batter their Passengers, immunizing them
from local law requirements that they compensate their victims.
2. The Warsaw Convention * should not be construed to bar
passenger actions against airlines for injuries due to willful tort,
including assault and battery and false imprisonment.
4. Her impression that the security personnel were police was not far-
fetched. They are similar, at least, to “law enforcement officers”. 14 C_FR.
§ 129.25(h)(1).
5. “Convention for the Unification of Certain Rules Relating to International
(Cont'd)
4
3. Where a passenger is injured within a state as a result of an
airline's nonaccidental willful torts under state law, viz assault and
battery and false imprisonment, the airline's liability is based on
the state law ordinarily applicable to private persons. The Warsaw
Convention does not exclude airlines from generally applicable
local tort law subjecting willful tortfeasors to the requirement that
they be held in damages to their victims.
4. An unexpressed preemption of the state tort law of civil
liability for assault and battery and false imprisonment and other
willful torts should not be read into the Warsaw Convention.
5. The Convention neither adopted any uniform rule of its
own nor authorized national courts to pursue uniformity in
derogation of otherwise applicable law, and Articles 17 and 24(2)
of the Convention permit damages for legally cognizable harm
resulting from willful wrongdoing. They leave specification of
such harm to the domestic law applicable under the forum's choice-
of-law rules. Zicherman v. Korean Air Lines Co., Ltd. 516 US.
217 (1996).
(Cont'd)
Transportation by Air”, Concluded at Warsaw October 12, 1929, and Entered
into Force for the United States October 29, 1934. 49 Stat. 3000 (Text codified
and appended to 40 U.S.C. § 40105).
5
ARGUMENT FOR RESPONDENT
1. IT IS AN ANOMALOUS AND IMPERMISSIBLE
ABSURDITY TO CONCLUDE ON THE BASIS OF THE
CONVENTION’S IMPOSITION OF LIABILITY ON
AIRLINES FOR ACCIDENTAL BODILY INJURIES A
WARRANT FOR THEM TO IMPRISON, ASSAULT AND
BATTER THEIR PASSENGERS ON STATE TERRITORY
FREE OF THE CIVIL ACCOUNTABILITY
TORTFEASORS OWE TO THEIR VICTIMS UNDER
STATE LAW.
As applied, the Question Presented for Review boils down to
whether Article 17 of the Warsaw Convention imposing strict
liability on airlines for accidental bodily injuries to their passengers
licenses them to imprison, assault and batter their passengers with
impunity contrary to state tort law. EL AL depends on a grotesque
and indefensible “Yes” answer to that question. In its brief (p. 38),
it makes that clear:
The unamended Warsaw Convention limits carrier
liability exclusively to injuries caused by “accidents”
-.» § Carriers are not liable for “events’ “ other than
“accidents’ and there is no right of recourse to national
Article 17 subjects airlines to strict liability® for accidental
bodily injuries. At bar, under the accepted common law principles
to which New York adheres, petitioner's conduct amounted to
assault and battery and false imprisonment, classically intentional
wrongs where committed.’ The Question presented for review by
6. Air France v. Saks, 470 U.S. 392, 404 (1985).
7. A. False imprisonment: Broughton \. State of New York, 37 N.Y. 2d
451, 373 N.Y.S. 2d 87 (1975), cert. den. sub nom.. Schanbarger v. Kellogg, 423
U.S. 929, 96 §. Ct. 277 (1975); Holt v State of New York, 29 N.Y. 2d $73
(Cont'd)
6
the petition on which certiorari was granted correctly assumes the
event here was no Article 17 accident. Petitioner would have Article
17 reach over and preclude recovery for a passenger's injuries
by willful tort with impunity and utter abandon. As applied, a
“Yes” to the Question Presented for Review would have that result.
Petitioner's amicus International Air Transport Association
(IATA) adopts El Al's view of The Convention with its
incongruous consequences. It criticizes the Second Circuit's
decision in its brief ([ATABr) because,
(Cont'd)
(1971); Scholl v. City of Utica, 163 A.D. 2d 909, $59 N.Y.S. 2d 827 (1990)
Note i: Intent to harm is not an essential element of the tort (Holt) but intent to
confine is (Broughton). Note ii: Lack of consent to confinement is a linchpin to
hability (Broughton). B. Assault and battery: Schloendorff v. The Society of
the New York Hospital (per Cardozo, J.) 211 N.Y. 125, 105 N.E. 92 (1914);
Jones v. State of New York, 33 N.Y. 2d 275, 352 N Y.S. 2d 169 (1973); Maines
». Cronomer Val. Fire Dept., 50 N.Y. 24 535,429 N.Y S. 2d 622 (1980); Sphere
Drake Insurance Company v. 72 Centre Avenue Corp., 238 A.D. 2d 574. 657
N.Y-S. 2d 65 (1997) (“intrinsically intentional act of assault”); Smith v. The
Limited, 237 A.D. 2d 345,655 NYS. 2d 418 (1997); Villanueva v. Comparetto,
180A.D. 2d 627, 580 N.Y.S. 2d 30(1992): Laurie Marie M. v. Jeffrey T.M., 159
A.D. 2d $2, 559 N_Y.S 2d 336 (1990); Rubino v. Ramos, 226 A.D. 24912. 641
N.Y.S. 2d 409 (1996); Locke v. North Gateway Restaurant, Inc., 233 A.D. 2d
578, 649 N.Y.S. 2d 539 (1996); Staudacher v. City of Buffalo, 155 A.D. 24 956,
547 N.Y.S. 2d 770 (1989); Oates v. New York Hospital, 131 A.D. 2d 368, 517
N.Y.S. 2d 6 (1987); Jones v. State of New York, 96 A.D. 2d 105, 468 N.Y.S. 2d
223 (1983); Noschese v. City of New York, 53 A.D. 2d 566, 384 N.Y.S. 2d 822
(1976), Budgar v. State of New York, 98 Misc. 2d 588, 414 N_Y.S. 2d 463
(1979); Masters v. Becker, 22 A.D. 2d 118, 120, 254 N.Y.S. 2d 633 (1964);
United National Insurance Co. v. Waterfront New York Realty Corporation, 994
F.2d 105 (2d Cir 1993). Note iii: Intent to harm is not a necessary element of the
tort (Schloendorff, Maines, Villanueva, Oates, Masters), though intent to make
contact 1s (Villanueva, Masters,). Note iv: Lack of consent to harmful touching
ts a linchpin to habuhty. (Schloendorff).
7
if affirmed, it would create [sic] liability in the absence
of both the accident — i.e., “an unexpected or unusual
event or happening that is external to the 4
Air France v. Saks, 470 U.S. 530, 535-36 (1991)
(emphasis added [by IATA]) — and the physical injury
prerequisites to recovery under Article 17... (IATA
Br, 4)
Hence, the argument runs, if the injury is not accidentally caused
but the effect of intentional tort, a prerequisite to recovery under
Article 17 has not been met and the intentional tortfeasor is safe
home and free of any obligations to its victim. Such is the logic of
petitioner's case.
Petitioner deduces this odd freedom to commit intentional
tort against passengers from Article 17's strict liability coverage of
accidents and its omission to refer to intended misconduct. Deriving
a free pass from the treaty for EL AL to commit tort against
Passengers so long as carried out intentionally and not accidentally
is reductio ad absurdum. It stretches the canons of interpretation
beyond the breaking point. Treaty constructions which “create an
absurd anomaly” as does petitioner's cannot stand. Sale y. Haitian
Centers Council, Inc., 509 U.S. 155, 179-80 (1993) (involving a
U.N. Convention Relating to the Status of Refugees). To read into
the same Convention which opens wide the courtroom doors to
victims of accidental happenstance a mandate to slam the doors
shut against victims of intentional wrongdoing is to implant into
the body of the Convention “an absurd anomaly”.
Implausibility alone has been held an important factor in
rejecting a defendant's proposed interpretation of a statute which
would effectively have denied plaintiffs state law protection from
injuries caused by defective products Medtronic, Inc. v. Lohr, 518
Zicherman v. Korean Air Lines Co., Lid., 516 U.S. at 223 (1996):
also Chan v. Korean Air Lines, Lid., 490 U.S. 122, at 128 (1989).
The law does not “lag behind common sense.” Ludecke vy.
Watkins, 335 U.S. 160, 166-167 (1948). As the strained
construction of the treaty urged by petitioner is implausible and
preposterous, ergo it is impermissible. It is at odds with the principle
which, by analogy, eschews absurd and irrational Statutory
interpretations. United States v. X-Citement Video, Inc., 513 US.
64, 69 (1994); United States v. One Parcel of Real Estate, 41 F.3d
1448, 1452 (1th Cir. 1995). The same teaching applies to
construction of treaties ratified by the Senate (see Toop v. Ulysses
Land Company, 237 U.S. 580, 35 S. Ct. 739 (1915)), not
excluding the Warsaw Convention.
A treaty’s interpretation takes into account its “nature [as] a
contract between nations” and that “ ‘general rules of construction
apply.” Societe Nationale Industriaile Aerospatiale v. United
States District Court, 482 U.S. 522, 533 (1987), citing Trans World
Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243 (1984). Ritter
v. Mutual Life Ins. Co., 169 U.S. 139, 156 (1898) states one of
those rules:
One rule of [contract] interpretation is that we must
never attribute an absurd intent if a sensible one can be
extracted from the writing.
Trans World v. Franklin Mint involved construction of the
Warsaw Convention. It was trenchantly noted by Stevens, J.
(dissenting op., 466 US, at 262):
As with any written document, there “is a strong
presumption that the literal meaning is the true one,
especially as against a construction that is not an
interpretation but perversion.”
More recently to the same effect was Chan v. Korean Air Lines,
490 U.S. at 130, rejecting a desired interpretation of the Warsaw
Convention which “produces absurd results.”
The adverse public policy implications of reading a treaty
ratified by the Senate to cloak airlines with freedom to assault and
9
batter and falsely imprison their passengers without incurring civil
liability need not be belabored. The Convention drafters did not
envision that air carriers would commit such willful torts against
their passengers. But if an airline should transgress, they surely
did not think to award the willful tortfeasor with immunity from
civil liability. If the roguish thought entered any minds, it went no
further. Treaties as other laws should be accorded a “sensible”
construction (Geofroy v. Riggs, 133 U.S. 258, 270 (1890)), which
petitioner's is not.
Petitioner's proposed construction is not an interpretation but
a bizarre perversion. The Second Circuit below pointed to the
absurdity in petitioner's reading of the Convention:
Such a reading would lead to the absurd result of
allowing carriers to escape liability for their negligence
— or even their intentional torts — so long as the
event giving rise to the injury was not an accident
* * *
(Tseng v. EL AL Israel Airlines, 122 F.3d 99, 106).
Attempting to sidestep the absurdity of petitioner's treaty
construction, petitioner's amicus Air Transport Association of
America (ATA) in its amicus brief in support of petitioner (ATA
Br.) at p. 22, argues that conducting a security search in an
intentionally tortious manner “is certainly unexpected by the
passenger and unusual for the airline” and “would thus be an
‘accident’ covered by the Convention and the airline would be
liable.”
Except for the concession that the airline's intentionally tortious
acts are certainly unexpected by the passenger, true of most willful
tort victims, this is baseless. The airline, as the district court found,
deliberately conducted the search of Ms. Tseng in the manner
prescribed by its own procedures. (n. 8, post; also Argument I]
below). The conduct which it planned and carried out was neither
unexpected nor unusual to it and no “accident”.
10
A state citizen should be entitled to the protection of state
willful tort laws when falling victim to such wrongs on state
territory. The Convention says nothing about the subject, save in
Article 25 which specifically respects such laws. It should not lightly
be construed to deny them that protection.*
Petitioner, referring to the Convention's drafting history in its
brief, candidly notes that “The Warsaw Convention minutes are
probably ‘more notable’ for their lack of discussion regarding
preemption” and that “the one and only comment expressly relating
to the preemptive language of Article 24 was by the British
Delegate.” (Petitioner's Brief (Pet Br.) 35). Not even that lone British
comment argues a broadening of the Article 17 term, “accident”,
the subject of Article 24(2)’s preemptive provisions for personal
injury claims, to preempt an air carrier's willful wrongdoing. This
hardly demonstrates a consensus among delegates that the language
of Article 24 carries preemption beyond Article 17 accidents into
the area of intentional tort.
Neither petitioner nor any of its amici, all of which purported
extensively to review the relevant Convention drafting history,
could document the least desire among those who formulated the
Convention and who later applied it that air carriers were to be
protected from civil responsibility for wrongs they intentionally
commit against passengers or to preempt local laws that provided
remedies for such willful wrongs. LATA elaborates on “Intercarrier
Agreements” and “Agreements on Measures to Implement” the
same (IATABr 16-18). Admittedly they are confined on their face
to injuries “within the meaning of Article 17”, namely accidental
injuries. Appendix D to LATABr demonstrates that petitioner EL
8. Note West v. American Telephone & Telegraph Co., 311 U.S. 223, 236
(1940), for the respect accorded to state common law rights by this Court, and
Silkwood v. Kerr-McGee Corp. 464 U.S. 238, 251 (1984) for this Court's denial
of non-expressed federal preemption of state common law protection afforded
persons on state territory. Also see discussion of unexpressed preemption of
state law under Argument V1, post, and of Article 25 under Argument VIII, post.
AL ISRAEL AIRLINES was not a signatory to such agreements,
whatever effect they might conceivably have had on respondent's
cause of action which had already accrued some years earlier. As
for the incompleted “modernization” of the Convention (IATABr,
18-20), that is a task for the parties to the Convention, not the
Court on this appeal which calls for a ruling on the state of the law
at the time of the occurrence some five years ago, and not as it
may be if “modernization” takes place in the future. The Court can
only inform, not hamper, that modernization process.
Il. PETITIONER’S CONDUCT WAS NOT ACCIDENTAL
AND THIS ELIMINATES ARTICLE 17 AS A FACTOR
IN THIS CASE.
A consent to search is not deemed voluntary in New York
when one bows to a display of authority.’ Respondent succumbed
to a display of uniformed police-like authority on the part of
petitioner. She did not consent.
Horrifying as the experience was to respondent, petitioner's
conduct was not accidental to it as it must be to invoke Article 17
with its exclusion of passenger recourse for non-bodily injuries. It
was an intentional carrying out of company policy (A113, 118),
—rather than an “unintended and unexpected occurrence which
produces hurt or loss” or “unexpected or unusual event” or
“unforeseen event” or a “fortuitous, unexpected, unusual, or
unintended event” within definitions of “accident” as used in Article
17 per Air France v. Saks, 470 U.S. 92, 398-400 (1985)."° The
9. People v. Cameron, 48 A.D. 2d 783, 369 N.Y.S. 2d 418 (1975).
10. . . . the drafters of the Convention understood the word
“accident” to mean something different than the word
“occurrence” . . . the text of Article 17 refers to an accident
which caused the passenger's injury, and not to an accident
which ts the passenger's injury. In the light of the many senses
in which the word “accident” can be used, this distinction is
(Cont'd)
12
district court found that “The actual techniques for carrying out
the search were prescribed by El Al's procedures”.'' Following its
own procedures was clearly not unintended, fortuitous, unexpected,
unusual or unforeseen for EL AL. It intended, foresaw and expected
what it had designed. True, Tseng did not expect it. Innocent
victims of willful wrong rarely do. Tseng's innocence of EL AL's
designs does not convert an intentional wrong involving scienter
into a happenstance.
Petitioner and its amici have waffled on whether respondent
was injured by an accident. Petitioner and Amici US and ATA try
to straddle the fence. Petitioner's LATA amicus contends for no
accident.
Petitioner itself had urged it was below. It then argued the
treatment accorded respondent was accidental and within the
(Cont'd)
significant. .. . The word “accident” is not a technical legal
term with a clearly defined meaning. Speaking generally, but
with reference to legal liabilities, an accident means any
unintended and unexpected occurrence which produces hurt
or loss.... In Article 17, the drafters of the Warsaw
Convention. .. specified that air carriers would be liable if the
accident caused the passenger's injury. . . the French legal
meaning of the term “accident” differs little from the meaning
of the term in. . . the United States. . . . The text of the
Convention consequently suggests that the passenger's injury
must be caused by an unexpected or unusual event. Zicherman
later added this meant “an unforeseen event”.
516 U.S. at 223.
11. Tseng v. El Al Israel Airlines, Lid., 919 F. Supp. 155, 158 (1996).
In its post Tseng decision, Fishman v. Delta Air Lines, 132 F.3d 138 (1998),
at 142, the Second Circuit, recalling the record at bar which had recently been
before it, observed: “the particular search conducted by the defendant in Tseng
was called for by the airline's normal, everyday procedure, and did not deviate
from it.”
ee ee
13
limitation to accidental “bodily injury” of Article 17. Excluded
from Article 17 rights are claims for accident-caused traumatic stress
or psychic injury (Eastern Airlines v. Floyd, 499 U.S. 530 (1991),
and this was the reason for petitioner's lower court argument. But
the cause in Floyd was brought under Article 17. It differs from
the instant action for intentional wrong based not on Article 17
but on state tort law.”
But as the case moved into this Court, in petitioning for
certiorari, petitioner appeared to depart fundamentally from its
original position. It refrained from arguing that the crucial event
was an accident. Its omission to make that contention in its petition
was noted and approved by Amicus US (see Amicus US brief
“Supporting Petitioner” (SG #2) at p. 18). This concession had
been noted and approved at the start by Amicus US in its original
brief. (SG #1, 11) But now petitioner casts hints and suggestions
in note 17 of its brief that it might be interpreted to be one, contrary
to the plain English (and French) meaning of “accident” in Article
12. Unlike the case at bar, founded exclusively on state-law tort, the
plaintiffs in Floyd asserted “two state-law tort claims, a state-law claim for breach
of contract, and a claim for recovery under the Warsaw Convention.” The case
came to this Court solely on the Convention cause, the state-law claims having
already been dismissed below on Florida state-law grounds. (Jn re Eastern
Airlines, Inc., Engine Failure, Miami Int’l Airport, 629 F. Supp. 307 (S.D
Fla. 1986)). Floyd expressly “address[ed] only the theory of recovery claimed
under the Warsaw Convention.” 499 U.S. 534 (n.2) No such theory is advanced
here. Similarly, in MacDonald v. Air Canada, 439 F.2d 1402 (ist Cir. 1991),
cited in Tseng as holding that the finding of an “accident” under Article 17 is a
prerequisite to liability to a passenger, the state law negligence causes were first
dismissed for insufficient evidence and the dismissal for no proof of “accident”
was limited to the remaining Article 17 cause of action, a cause not asserted at
bar.
13. We believe it would be appropriate for this Court to accept
the parties’ agreement on that issue: a routine security search
that complies with federal standards, as this one apparently
did (see Pet. App. 41), should not be characterized as an
“accident.”
oT TY
14
17 set forth in Saks. It does not contend that it was, but petitioner
cagily leaves the matter up in the air.
Without a clearly stated claim that this case evolved from an
accident, petitioner has abandoned reliance on Art 17. As this Court
pointed out in Floyd, 499 U.S. at 535-536, the very first condition
to Article 17's applicability is that there have been an accident.
Shifting to a new tack, petitioner can only be read to urge that for
the very reason its tort was not accidental within the Saks definitions,
its very willfulness which makes its acts not accidental immunizes
it under the no longer applicable Article 17. It is unlikely that the
Warsaw Convention's architects and the ratifying Senate had that
in mind.
Article 17's application at bar would be equally absurd, given
its plain language and strict liability implications. By the district
court's reasoning, the passenger search here with all it entailed was
an “accident” because what led to it was a mistaken suspicion of a
person with a ticket seeking to board the plane who tugned out to
be an innocent traveler. It dismissed her case because she was
innocent. By that approach, every mistake leading to a search,
however honest, would render the search an “accident” and lead
straight to Article 17 strict liability in case of ensuing bodily injury.
In the court’s understated opinion below,
To suppose the drafters of the Convention aimed to
impose close to absolute liability on air carriers for
searches that disclosed no danger seems to us highly
unlikely.
Tseng v. El Al Israel Airlines, 122 F.3d 99, 103-4 (JAS2).
Hoping to escape the accident requirement of Article 17 not
met here, EL AL falls back on Article | of the Convention for
Unification of Certain Rules. Article | provides that the Convention
shall apply to “all international transportation of persons” by aircraft.
Application to “all international transportation of persons” is quite
consistent with the limitation of Article 17 to “accidental” injuries.
ee ee ee
15
Petitioner would convert Article 1 from what on its face only
outlines the area in which the Convention applies to a provision
preempting all other law in that area, even though state law of
intentional tort does not conflict with the Convention and even if
preemption is not expressed in it. Petitioner would have Article |
alter the scope of Article 17 from accidents, as it provides, to
“passenger injury” however caused,"* even when by intentional
airline wrongdoing. That contorted reading is necessary for
petitioner to bring the cause at bar within the coverage of Article
17 and so invoke the exclusivity provisions of Article 24(2).
Nothing in Article | warrants such a reading.
Amicus IATA similarly refers to “the jurisdictional scope of
Article 17” as though mere scope or area of coverage is enough to
preempt non-accidental intentional torts when the Convention
drafters made no effort to do so. (IATA Br., 12).
Amicus US, in a remarkable display of self-contradiction, after
conceding that the precipitating event could not properly be termed
an “accident”, in the same brief supporting review by this Court
and now in its Amicus brief supporting petitioner on the merits
turns around and makes a last gasp try to Salvage the “accident”
label anyway. The US goes back and adopts EL AL’s original
position in the Court of Appeals that the cause arose from an
accident and which, with the blessing of US, petitioner did not
include in its petition for certiorari. At SG #1, 16, fn. 7. undoing
its blessing, US argued that
the definition of “accident” had been “flexibly applied”
in this context to include not just inadvertent harms.
but reckless and even intentional torts as well, such as
“torts committed by terrorists.” Saks, 470 U.S. at 405.
And now in its second brief (SG #2, 18, fn. 11), US substantially
repeats the same contention.
14. Petitioner ignore Saks which sharply distinguished “accident which
caused the passenger's injury” referred to in Article 17 from “accident which is
the passenger's injury” which is not within the intendment of Article 17.
16
“Accident” is not an ambiguous term and has not been so
flexibly applied. Amicus US forgets the teaching of Saks, supra: a
basic characteristic of an Article 17 “accident” is that it be
“unintended” by the air carrier.
US “proves” its point with examples which are not “in this
context”, if that means context of this case. They are of intentional
torts inflicted by third persons, not by the air carrier itself. The
reference to “torts committed by terrorists” in Saks as accidental to
airlines does not establish that intentional torts committed by airlines
themselves are accidental to airlines. Saks is squarely to the contrary.
The US's “insurance law” contention (“intentionally inflicted by a
third person”) is subject to the same infirmity. SG Br. 16, fn. 7!
If the intentional wrongs committed by third parties are Art.17
“accidents” subjecting airlines to strict liability, this “expansive
scope of the term ‘accident’” in no way answers “the Court of
Appeals’ concern that carriers not escape liability for their intentional
torts”, as US asserts at SG Br. 16, fn. 7. (Emph. added).
While respect is due to the executive’s views on treaty
interpretation, deference should not be given where those views
are unreasonable and illogicat.
15. Under the insurance law, where an assured itself intentionally commits
tort, it is not accidental as a matter of law so as to entitle the assured to coverage
under an accident policy. Technicon Electronics C. orporation v. American Home
Assurance Company, 74 N.Y. 2d 66 (1989): e.g. St. Paul Fire and Marine
Insurance Company v. Warwick Dyeing C. orporation, 26 F.3d 1195, 1202 (ist
Cir. 1994), construing a policy covering property damage resulting from an
assured’s accidental pollution discharge:
The courts are practically agreed that the words “accident” and
“accidental” mean that which happens by chance or fortuitously,
without intention or design, and which is unexpected, unusual
and unforeseen.
Aetna Casualty & Surety Co. v. General Dynamics C orp., 968 F.2d 707, 710
(8th Cir. 1992) (quoting St. Paul Fire & Marine Ins. Co. v. Northern Grain Co.,
365 F.2d 361, 364 (8th Cir. 1966)). “We think it would strain common sense to
find that ACME’s disposal of Warwick's waste in a landfill was unexpected or
unintended by Warwick [the assured].”
SP ne a el,
17
As noted, both petitioner and Amicus US (despite its reference
to third party terrorists and the insurance law) agree that the event
was no accident. The original French text of Art.17 uses the word
“laccident” for the triggering event.'* It was no /’accident in the
original French any more than in the English sense of the word
(see Saks, supra). The same word in each language specifically
means what this Court in Saks said it meant. If there was any
doubt, the later Zicherman, 516 U.S. at 223, made it very clear
that in Saks, it had
determined that in French legal terminology the word
“accident” reterred to an unforeseen event.
The signatories’ delegates who drew up the convention were
at no loss for generic French words such as /’événement and la
occurrence, These terms are broad enough to include any event,
accidental or intentional, if that is what they intended"’. They are
not specifically limited to accidental events as is /’accident, the
term the signatories employed in Article 17.'* The delegates knew
the difference. Where |’événement was intended, as in Article 18, it
was used. Text language in treaty interpretation is not to be brushed
16. Set forth in 94 Stat. 3005 and in Air France v. Saks, 470 U.S. 392, 398
(n.2).
17. Cassel’'s French Dictionary (1962) 7, 324, 416, 520. Also Giemulla/
Schmidt, Warsaw Convention, Kluwer Law International, The Hague, London,
Boston, Suppl., 4 (October 1994), WC Art. 17, p. 10, pointing to the significance
of use of the term accident rather than the word |’ événement, a “broader term”
meaning “event” which term when intended is used elsewhere in the Convention,
e.g. Art. 18.
18. As noted by petitioner in its brief (Pet. Br. 37), the treaty signatories
were quite sensitive to Art. 17’s employment of the term “accident” instead of
“event” when at Guatemala City in 1971 their delegates made an effort to
substitute “event” for “accident” in Art. 17, failing to make the change effective
for lack of a sufficient number of ratifiers.
18
aside, especially where the text is clear. Chan v. Korean Air Lines,
Ltd., 490 U.S. at 134 (1989).'°
The drafters’ use of the French word for accident in Article 17
is not ambiguous. It could not be clearer.
“[T]o alter, [* * * 21] amend, or add to any treaty, by
inserting any clause, whether small or great, important
or trivial, would be on our part an usurpation of power,
and not an exercise of judicial functions. It would be
to make, and not to construe a treaty. Neither can this
Court supply a casus omissus in a treaty, any more
than in a law. We are to find out the intention of the
parties by just rules of interpretation applied to the
subject matter; and having found that, our duty is to
follow it as far as it goes, and to stop where that stops
— whatever may be the imperfections or difficulties
which it leaves behind. The Amiable Isabella, 6 Wheat.
1, 71 (1821).” Chan v. Korean Air Lines, 490 U.S.,
135.
As this Court pointedly held in Air France v. Saks, 470 U.S.
398, by providing for liability to injured passengers due to an
“accident” in Article 17 and for baggage loss due to an “occurrence”
in Article 18, word differences meant something.
This difference in the parallel language of Articles 17
and 18 implies that the drafters of the Convention
understood the word “accident” to mean something
different than the word “occurrence,” for they otherwise
logically would have used the same word in each article
... The language of the Convention accordingly
renders suspect the opinion of the Court of Appeals
that “accident” means “occurrence.”
19. Also note concurring opinions of Justices Kennedy and Scalia in United
States v. Stuart, 489 U.S. 653 (1989), at 370 and 371 respectively.
19
Hence, far from making Article 17 all-embracing to cover all
personal injuries and employing a term available to them to make
it so, the drafters deliberately used a term limited to “unexpected
or unusual events”, or “unforeseen events” as was held to be the
case by this Court in Saks and later, Zicherman. It is only to those
unexpected, unusual, or unforeseen events that Article 17 can be
regarded as exclusive.
The Fifth Circuit in Potter v. Delta Airlines, 98 F.3d 88 1, 887
(1996) thought the views of delegates to the Guatemala City
International Conference on Air Law in 1971 demonstrated that
Article 17's use of the term “accident” was outmoded and that in
the eyes of the international community “event” should replace
“accident” in Article 17. This is clear error. If it did, Article 24(2)
would have preempted the Delta occurrence. In fact. the opposite
is demonstrated and in the end the Potter court agreed.
Those Guatemala City delegates did express dissatisfaction
with the word “accident”, with its narrow import in Article 17 and
a desire to substitute the broader term “event” for it. See Air France
v. Saks, 470 U.S. 403-04. They issued the Guatemala City Protocol
of 1971 to incorporate this change, but this failed for lack of ratifiers,
including the United States. The Saks Court, after taking
Guatemala City into account, concerned itself with the meaning
of “accident”, defined it as described and Article 17 remains
unchanged. The result of Guatemala City serves as an interpretative
aid to the Convention. It highlights the signatories’ recognition of
the difference between “accident” and “event” and speaks to the
significance of the continued retention of “accident” and its non-
replacement by “event” in Article 17’s text.
When it came down to it, the Fifth Circuit accepted this as a
fact. If “accident” had become as broad a term as “event” in the
context of Article 17, the occurrence resulting in injury to Mrs.
Potter on the Delta flight would have been included and covered
by Article 17 and expressly have been preempted by Article 24(2).
Potter recognized it was not that broad. Without preemption
20
expressed anywhere in the Convention, to find it Potter had to
imply it. 98 F.3d at 885.
Petitioner's Amicus LATA (IATABr, 4) straight off argues that
because the event was not an accident it should be deemed
preempted by the Convention.
If the text of Article 17 per se were not enough, no evidence
that the framers possessed the unlikely intent to embrace intentional
tort along with accidents within Art.17 under the term /'accident
has been culled by petitioner and its supporting amici from the
drafting history or context to expand the language used beyond its
plain meaning.
Accordingly the case at bar arising from an intended event, is
not embraced within the scope of Article 17 but belongs outside
the Convention and its restrictions.
Ill. ARTICLE 24(2) PLAYS A DEFINING ROLE BY NOT
INCLUDING INTENTIONAL TORT WITHIN THE
SCOPE OF THE CONVENTION’S EXCLUSIVITY BUT
INSTEAD LIMITING EXCLUSIVITY IN PERSONAL
INJURY CASES TO ACCIDENTS COVERED BY
ARTICLE 17.
The only reference in the Convention to Article 17 exclusivity
appears in Article 24(2). Without exclusivity or preemption under
Article 24(2), there is none under the Convention.
Exclusivity is imparted to various portions of the Convention
by Article 24. Article 24(1) imparts it to cases covered by Articles
18 (baggage and goods) and 19 (delay), not pertinent here. Whatever
exclusivity Article 17 could possibly have had here would be a
product of Article 24(2). It furnishes it so long as the case is
“covered by article 17”. The case at bar is not. As noted, Eastern
Airlines v. Floyd made clear that the first requisite to coverage by
Article 17 is that there have been an “accident” (499 U.S. at 535-
36). Itis beyond cavil that the occurrence herein was not an accident
- es
21
_
and was not “covered by Article 17”. Exclusivity of Article 17 in
the area of intentional tort is unauthorized by Article 24(2) or any
part of the Convention and does not exist. To extend the scope of
Convention exclusivity beyond what the Convention provides
would require an improper judicial redrafting of Article 24 or Article
17, and this is barred. Chan v. Korean Air Lines, Ltd. 490 US. at
135; Air France v. Saks, 470 U.S. at 406.
The clause in Article 24(2), “without prejudice” to the
“respective rights” of plaintiffs as a further exception to any imputed
exclusive effect of Article 17 can only be meaningful if the door is
left open to the assertion of “rights” based on other law. The very
term “rights” signifies a legal basis. It is a term contained in a
clause providing that rights derived not from Article 17 but
elsewhere are not within the exclusive provisions of that Article.
Local law is left standing as a basis for those other rights by Article
24(2).
Exclusivity leads to preemption of local law. The Convention
nowhere expresses preemption if the injury Causing occurrence is
not an Article 17 “accident”. For all its discussion of the exclusivity
provisions of Article 24, the Fifth Circuit in Potter v. Delta Airlines.
98 F.3d 881 (1996) ended up agreeing they did not apply. Potter
acknowledged “the Convention has not expressly preempted state
law” (i.e. by exclusivity of Article 17) and so it implied it. (98
F.3d 885) Petitioner depends upon implanting an unexpressed
implied preemption of state law into the Convention to uphold its
contentions. The Convention does not state that it exclusively
governs so as to preclude willful tort liability. And so it does not
under Zicherman. Petitioner offers no compelling reason why the
case at bar should present the occasion to upset this settled law.
The Convention does not purport exclusively to cover the
field, but only “certain” parts of it. Far from Stating that it is
exclusive, the drafters saw to it that the treaty was entitled
“Convention for the Unification of Certain Rules Relating to
International Transportation by Air”. Though their existence was
apparently envisioned, rules not “unififed]” by the Convention
22
were not encompassed in it. As noted in Tseng below (122 F.3d
105), the drafting history of the Convention shows that the use of
that terminology in its title was not accidental. It was the product
of an effort to insure that the Convention not be regarded as all-
encompassing, blanketing the field to the exclusion of non-
conflicting national laws. Indeed the express limitation of the scope
of the Convention to “certain rules” played a critical role in the
Convention's adoption.
IV. THE SUPPOSED NEED FOR “UNIFORMITY” IN
CONSTRUING THE CONVENTION TO RENDER IT THE
EXCLUSIVE SOURCE OF REMEDY AGAINST
AIRLINES HAS BEEN REJECTED BY THIS COURT IN
FAVOR OF LEAVING SPECIFICATION OF THE HARM
LEGALLY COGNIZABLE TO THE DOMESTIC LAW
APPLICABLE UNDER THE FORUM’S CHOICE-OF-
LAW RULES.
Neither Abnett v. British Airways PLC | All E.R. 193 (H.L.
12 December, 1996) nor Potter v. Delta Airlines, 98 F.3d 881,
supra, poses a conflict with the Second Circuit in this case. Neither
Abnett nor Potter \ends support to EL AL’s argument that the
Warsaw Convention shields it from common law claims of willful
wrongdoing. As for Abnett, its effect here, if any, depends at the
outset on a comparison of the two cases. Abnett did not involve
intentional tort. The one at bar does. The opinion by Lord Hope
in Abnett involved common law passenger claims in negligence
and breach of implied contract of reasonable care. It arose from a
flight delay in Kuwait exposing the passengers to capture by
invading Iraqis. In that non-willful wrongdoing case, Lord Hope
ruled that Article 17 was the exclusive remedy for passengers. He
rested on a felt need for uniformity in construing the Convention
but the doctrine he expounded was not in the context of plain
common law willful torts, as at bar.
In pursuit of uniformity, Lord Hope overlooked mention of
this Court’s landmark Zicherman holding which came down almost
23
a year before (16 January, 1996) and which flatly rejected
uniformity as a guiding principle in construing the Convention.
(516 U.S. 225) The most natural reading of this Article
is that, in an action brought under Article 17, the law
of the Convention does not affect the substantive
questions of who may bring suit and what they may
be compensated for.
(516 U.S., 229) Congress may choose to enact special
provisions applicable to Warsaw Convention cases, as
some countries have done. See supra, at 635. Absent
such legislation, however, Articles 17 and 24(2) provide
nothing more than a pass-through, authorizing us to
apply the law that would govern in the absence of the
Warsaw Convention.
» * *
We conclude that Articles 17 and 24(2) of the Warsaw
Convention permit compensation only for legally
cognizable harm, but leave the specification of what
harm is legally cognizable to the domestic law
applicable under the forum's choice-of-law rules.”
Thus Abnett, calling for “uniformity” as a guide to Convention
interpretation, failed to heed its own call but went its own way,
establishing a British view unexplainedly differing from the
American approach in the earlier Zicherman. Signatory states have
traditionally applied differing rules in construing various
Convention clauses.”'
20. Applied by this Court in Dooley v. Korean Air Lines Co., Ltd., 97-704
(decided June 8,1998) U.S. __
21. See extensive signatory state court references throughout Giemulla/
Schmidt, Warsaw Convention, Kluwer Law International. The
Hague * London * Boston, and Suppls.; Goldhirsch, The Warsaw Convention
Annotated, a Legal Handbook, Martinus Nijhoff Publishers, Dordrecht/Boston/
London, 1988.
24
The court below followed Zicherman’s guidance. It exposed
some of the flaws in the Potter v. Delta Airlines argument. (98
F.3d 881, 885) Potter, like Abnett a non-willful tort case, erroneously
equated uniformity with exclusiveness in providing remedies. As it
held, the goal of uniformity does not preclude resort to local law
when the Convention is not applicable. Tseng, 122 F.3d 107 (JA60).
But yet Potter does not necessarily conflict with the Second
Circuit's Tseng. It does not confront the issues at bar. It no more
involves a willful tort by an airline than did Abnett. In Potter, a
passenger returning to her seat on a privately owned aircraft caught
her foot in a carpet in the aisle as she sought to squeeze sito her
row past a passenger leaning back and twisted her knee. The court
held the unintended occurrence did not fit the meaning of “accident”
in Article 17 set by Air France v. Saks. (see Note 10, supra). That
left the passenger with state-law negligence claims. Potter's broadly
stated holding that a requirement of uniformity bars non-accidental
occurrence recoveries against airlines was in the context of those
claims, not one for willful tort which was not before it.
To the extent that Potter's reach be deemed to extend beyond
the unintended occurrence case before it, it would take a long
stretch to extend it as far as the present case involving scienter. Its
reasoning is posited upon the dubious assumption, rejected by
Zicherman, that interpretation of the Warsaw Convention is bound
by a requirement of uniformity. Potter's rationale for barring
negligence claims via the uniformity route boiled down to:
Uniformity with respect to liability is required in order
to allow airlines to raise the capital needed to expand
operations and to provide a definite basis upon which
their insurance rates can be calculated.
(98 F.3d 885).
That rationale has no application at bar. It can scarcely be
contended that requiring airlines to respond to the applicable state
tort law when they assault, batter and falsely imprison passengers
25
on state soil would be unjust or add so much as a jot to operating
costs. On the screen of the economics of the international air
transportation industry, such an elusive speck would not appear
more boldly than a faint blip, if that.
The Warsaw Convention has long exposed Airlines to state
tort law liability in cases of willful misconduct. The Convention's
Article 25(1) itself expressly rejects uniformity of law, i.e.
Convention exclusiveness. No unforeseen new burden, if burden
it can be called, would be added by an affirmance. If any there be,
it is already there. Article 25(1) directs that the law ordinarily to be
applied by the trial court, here the lex delicti, must govern in such
matters.” In so doing, it endorses the effectiveness of applicable
local law and subjects airlines tc it.
Zicherman, followed by the Second Circuit in Brink's Limited
v. South African Airways, 93 F.3d 1022 (1996), and Pescatore v.
Pan American World Airways, Inc., 97 F.3d 1 (1996), lately joined
by the Eleventh Circuit in Krys v. Lufthansa German Airlines,
119 F.3d 1515 (1997), expressed the principle followed by the
court below that “uniformity” is no magic potion for construing
the Convention.” Indeed, Zicherman expressly disapproved an
earlier Second Circuit holding under review which had made a felt
need for uniformity key even where Convention rights were
asserted.
As noted, petitioner’s misplaced reliance upon Abnett to
overstress the need for uniformity in construing rights of
international air travelers is undermined by Zicherman.
It was earlier observed by the Second Circuit in Day v. Trans
World Airlines, Inc., 528 F.2d 31, 37 (1975), cert. den., 429 U.S.
890,
22. See text and further discussion under VIII, post.
23. In the wake of Zicherman, a district court sitting in Florida has recently
ruled that the Warsaw Convention is not exclusive as against state law remedies.
Air Express International, Inc. v. Aerovias de Mexico, 977 F. Supp. 1191 (W.D.
Fla. 1997).
26
that the protection of passengers ranks high among
the goals which the Warsaw signatories now look to
the Convention to serve.
Additionally, the purported goal of worldwide
uniformity could not have been paramount in the minds
of the framers of Article 17, for they contemplated a
case-by-case application by the courts that would, to
some extent at least, rely on local law.
For its part, the Convention does not expressly preempt all
personal injury law governing passenger suits against airlines. The
same Fifth Circuit in Potter, upon which petitioner relies for the
repudiated principle of uniformity noted this to be the case. (98
F.3d at 885).
Exclusivity is not a feature of the Convention. The term is
used by petitioner and its amici as a code word to justify an
interpretation of the Convention whereby airlines are only exposed
to liability for Article 17 “accidents” (i.e., per Saks, “unexpected
or unusual” events) but shielded from common law liability for
injuring passengers by intentional torts. The absurdity of this treaty
construction has been discussed above.
The reading of the Convention in Zicherman (516 U.S. 229)
referred to above is precise in this context:
Articles 17 and 24(2) provide nothing more than a
pass-through, authorizing us to apply the law that
would govern in the absence of the Warsaw
Convention. There is littke doubt what that law is in
this case.
Zicherman tellingly disposes of the “exclusivity” contention:
The Convention unquestionably envisions the
application of domestic law.
(516 U.S., 231).
27
V. CONTRARY TO THE GOVERNING LAW
PETITIONER WOULD READ INTO IN THE
CONVENTION A BAN ON RECOURSE TO STATE LAW
FOR DAMAGES CAUSED BY NON-ACCIDENTAL
WILLFUL TORT WHICH THE SIGNATORIES HAD
OMITTED.
If Article 24(2) were not regarded as leaving the door open to
assertion of rights other than those provided by Article 17, its
“without prejudice” phrase would be meaningless, despite the rule
that meaning be given to every clause of a treaty. While “the more
liberal interpretation” of the Convention clause is ordinarily to be
preferred for rights claimed under it (Bacardi Corp. of America vy.
Domenech, 311 U.S. 150, 163, 61 S. Ct. 219 (1940); Geofroy v.
Riggs, 133 U.S. 258, 271-2, 109 S. Ct. 1676 (1890)), there can
be no doubt since Zicherman that this rule applies here.
Even were there no Article 24(2), petitioner’s statement
(Petition, p. 9) that “a right of recourse under state law should not
be read into Article 17” stands the question on its head. Petitioner
does the reading in. It reads into it an unwritten denial of that
right. Summed up, a ban on recourse to state law for non-accidental
tortiously inflicted injuries is not expressed in the Convention and
should not be read into it. No reason has been offered for
abandoning the rule against judicial embellishment of treaties by
addition of provisions not there. Chan, p. 135, supra, citing The
Amiable Isabella, 6 Wheat. 1, 71 (1821).
The Convention became a United States treaty by Senate
ratification.
It is difficult to believe that Congress would, without
comment, remove all means of recourse for those
injured by illegal conduct.
Silkwood v. Kerr-McGee Corp. 464 U.S. 238, 251 (1984).
The Second Circuit carefully reviewed the history and
language of the Warsaw Convention and properly concluded that
28
the reading sought by petitioner was unfounded: (122 F.3d 106-7
Pet. p. 20a).
Given the self-described limitation of the Convention,
it seems illogical to extend its scope beyond that for
which it explicitly provides. It is not tenable to believe
the Convention meant to address the more ordinary
type of personal injury without some express statement
in the text to that effect. Such a reading would lead to
the absurd result of allowing carriers to escape liability
for their negligence — or even their intentional torts
so long as the event giving rise to the injury was not
an accident occurring on an airplane or in the course
of embarking or disembarking as narrowly
circumscribed by the definition of Article 17’s meaning.
With the Convention silent on the matter, New York's public
policy as recently reaffirmed by its highest court to reduce rather
than increase the obstacles to recovery of damages, whether
defendant is a private person or a public body, and that “[I}iability
is the rule, immunity the exception”, should be applied with the
rest of its law. Brown v. State of New York, 89 N.Y. 2d 172, 180
(1996). The public policy of New York is in tune with that long
ago laid down for treaty construction by this Court in Bacardi
Corp of America v. Domenech, 311 U.S. 150, 163 (1940); Geofroy
v. Riggs, 133 U.S. 258, 271-2 (1890) (see post).
New York State’s common law of assault and battery and false
imprisonment is of general applicability. Realistically its application
can have no burdening effect on international air transportation.
Protection of the airline industry from such causes of action was
hardly in the minds of the drafters and ratifiers of the Convention
whose silence on the subject of intentional airline tort in the text
was eloquent in expressing what was not within their shared
expectations.“ No unreasonable hardship will be imposed on an
24. Except for Article 25, discussed infra.
29
air carrier if made to respond in damages to passengers it injures
by willful wrong in the same way as other tortfeasors. Nothing in
the Convention carves out a special exemption of airlines from the
several laws of general application of the signatories which entitle
victims of willful tort in their territories to redress, or indicates that
the signatories intended to abandon the protection afforded by
their own several tort laws to the public in such circumstances.
If the Convention was indeed intended as the exclusive vehicle
for maintaining a cause for willful wrongdoing, Article 25 would
permit the action despite any limitations or exclusions found
elsewhere in the Convention. See discussion under VII, post.
Amicus US contends that Article 25 “is not at issue in this
case”, on two grounds. (SG #1, 12,13) (SG #2, 18 fn. 10) The
first was that the district court found, “as a factual matter, that
petitioner’s actions were not willful,” and that “In the court of
appeals respondent did not squarely challenge that factual finding
as Clearly erroneous”. US concedes that respondent did indeed
invoke Article 25, arguing “principally that the kind of torts here
are ‘willful’ as a categorical matter and that anything ‘willful’ cannot
qualify as an ‘accident’ under Article 17.”
The first ground is groundless. The district court ruled:
Accordingly, I find that it was not such wilful
misconduct as might take the case outside the
Convention’s limitations of liability under Article 25.
(JA 31).
This was not a finding of fact. It was merely the district court's
legal conclusion that “it was not such wilful misconduct as might
take the case outside . . . Article 25.”
Respondent preserved its argument in the court of appeals
that the district court erred in that legal conclusion. The Second
Circuit rejected petitioner’s Article 25 argument, not because of a
30
district court “factual finding that petitioner’s actions were not
‘wilful’ ” which respondent did not attack, but for very different
reasons discussed below in Argument VII.
As a second ground, Amicus US asserts that respondent “has
not preserved any argument that Article 25 affects the exclusivity
analysis in this case”, not having cited Article 25 by name in her
brief in opposition to the petition (conceding that respondent's
brief continued to “characterize petitioner’s conduct as ‘willful’ ”
(SG #1, at 13)), that being the substance of Article 25. She did so
some eight times. For good measure she used the synonymous
characterization of that conduct, “intentional”, yet four additional
times.
Amicus US cites this Court’s Rule 15.2 jor its “not preserved”
contention. Rule 15.2 refers to the obligation of respondent's
counsel to point out perceived misstatements in the petition in the
opposing brief, and not later. No misstatement regarding Article
25 was perceived in the petition, which does not so much as advert
to it. Rule 15.2 further provides that “Any objection to consideration
of a question presented based on what occurred in the proceedings
below . . . may be deemed waived unless called to the Court’s
attention in the brief in opposition.” Respondent’s Counter-
Statement (1) of the Questions Presented for Review in her brief in
opposition to certiorari called the Court’s attention to her objection
to consideration of the first Question as petitioner presented it. No
more specific objection, if indeed any was needed, should be
required to preserve the Article 25 contention.
Amicus US concluded that “Article 25 presents no obstacle to
this Court’s review of the exclusivity issue presented here.” But
now that review has been granted, Article 25 stands as an obstacle
to petitioner’s prevailing on the merits.
3]
VI. PREEMPTION OF THE STATES’ COMMON LAW
OF PERSONAL INJURY TORTS IS DISFAVORED AND
CONTRARY TO THE PRESUMPTION AGAINST IT.
The Question Presented effectively calls for a ruling whether
the Convention preempts the state common law on which
respondent predicated her causes of action. There remains a strong
principled presumption against preemption of state common law
in the area of personal injury torts. Though there are none here,
even legislatively expressed preemptive clauses are presumed
inapplicable.
Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996), dealt with an
argued preemption of state common law personal injury claims by
a federal statute. Unlike the Convention here, that statute did contain
specific preemptive language. The Court noted:
(p. 475)
Throughout our history the several states have exercised
their police powers to protect the health and safety of
their citizens. Because these are “primarily and
historically”, ... matters of local concern, [...] the
“States traditionally have had great latitude under their
police powers to legislate as to the protection of the
lives, limbs, health, comfort, and quiet of all persons.”
ee
(p. 484-85)
As in Cipollone v. Liggett Group, Inc., 505 U.S. 504
[. . .], we are presented with the task of interpreting a
statutory provision that expressly pre-empts state law.
** *
* * * because the States are independent sovereigns in
our federal system, we have long presumed that
Congress does not cavalierly pre-empt state-law causes
32
of action. In all pre-emption cases, and particularly in
those in which Congress has “legislated . . . in a field
which the States have traditionally occupied,” [. . .] we
“start with the assumption that the historic police powers
of the States were not to be superseded by the Federal
Act unless that was the clear and manifest purpose of
Congress.” * * * we used a “presumption against the
pre-emption of state police power regulations” to
support a narrow interpretation of such an express
command in Cipollone [...]. That approach is
consistent with both federalism concerns and the
historic primacy of state regulation of matters of health
and safety.
(p. 487)
*** It is, to say the least, “difficult to believe that
Congress would, without comment, remove all means
of judicial recourse for those injured by illegal conduct.
Silkwood v. Kerr-McGee Corp, 464 U.S. 238, 251 (1984).
Also note New York State Conference of Blue Cross & Blue
Shield Plans v. Travelers Insurance Company, 514 U.S. 645, 654
(1995), to similar effect.
Where this Court has found implied preemption, certain criteria
were first met. These were laid out in Gade v. National Solid Wastes
Management Association, 505 U.S. 88, 98 (1992): (1) If “field
preemption”, where the scheme of the putative preemptor’s
regulation is so pervasive as to leave no room for local law to
supplement it; (2) if “conflict preemption”, where compliance with
both the putative preemptor’s and local regulations is a physical
impossibility; and (3) where local law stands as an obstacle to the
accomplishment and execution of the full purposes and objectives
of the putative preemptor’s. The principles should be as applicable
to treaty preemption as to statutes’.
33
None of these applies to justify an implied preemption by the
Convention and the ratifying Senate of a state’s common law torts
of assault and battery and false imprisonment. The scheme of the
Convention is not so pervasive as to embody a remedy for those
willful torts and occupy the field. It lacks any remedy and willful
airline torts are not within its scope. Nor is there such (or any)
inconsistency between common law willful tort law and the
Convention as to make compliance with both a “physical
impossibility”. The “full purposes and objectives” of the signatory
states will not be affronted by allowing passengers a right of civil
redress for intentional wrongs committed against them.
If preemption were to be applied here, it could be necessary to
hold that while a state law affecting the rights of passengers injured
as a result of accidents in international flights may be preempted
by Article 17, the preemptive effect is so broad as to extend to
non-accidents, here to assault, battery and false imprisonment. This
was rejected below for good reason stated. Tseng, 122 F.3d 107-
108 (JAS9).
Vil. ARTICLE 25 EXPRESSLY LEAVES AIRLINES
EXPOSED TO LIABILITY FOR’ WILLFUL
WRONGDOING AND MANDATES LOCAL LAW AS THE
LAW OF CHOICE FOR WILLFUL AIRLINE TORT.
Of all the provisions of the Convention, Article 25 alone
expressly focuses on willful tort.* It excludes such misconduct
25. Article 25:
(1) The carner shall not be entitled to avail himself of the provisions
of this convention which exclude or limit his lability, 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
submitted, is considered to be equivalent to wilful misconduct. (2)
Similarly, the carrier shall not be entitled to avail himself of the
Said provisions, if the damage is caused under the same
circumstances by any agent of the carrier acting within the scope
of his employment.
34
from the scope of any exclusions or limitations to be found
anywhere else in the treaty. It serves an important goal of the
Convention to deter carriers from willful misconduct. In
furtherance of that purpose, Article 25(1) not only rejects any
possibility of Convention exclusivity and preemption of local
willful tort law but commands that law's application.”® Both Article
25(1) and (2) exactly cover the facts and applicable law herein. A
“Yes” answer to the Question Presented so as to exclude
respondent's right to sue in this case is barred by Article 25.
To comb the Warsaw Convention for text supporting an
implied airline immunity from willful tort claims for personal
injuries is to comb in vain. The opposite is true when searching
for exposure to such claims. Article 25 contains a willful tort
exception for all liability exclusions, including the exclusion from
liability for psychic as distinguished from bodily injuries found in
Article 17. It leaves airlines exposed to liability for the same.
Willfulness is expressly determinable under choice of law principles
ordinarily applied, here the lex loci delicti.
The application of state law to liability for damages to
passengers for willful wrongdoing committed by the airline in
New York State is mandated by the Convention itself. For that was
“the law of the court to which the case [was] submitted.”
It is uncontested that petitioner’s employees who treated with
respondent at JFK were doing its work. Petitioner stands in their
shoes. Their deliberate deeds were its deliberate deeds. They had
carried out the functions and procedures it prescribed for them,
rendering it liable when those deeds were tortious. Article 25(2).
It is true that the Second Circuit disagreed with the application
of Article 25 to this case of willful tort. While holding that
intentionally designed acts are not to be subsumed within the scope
26. See Goldhirsch, The Warsaw Convention Annotated, a Legal
Handbook, Martinus Nijhoff Publishers, DordrechUBoston/London, 1988, at
p. 122.
35
of the Article 17 “accidents”, meaning unexpected, unusual or
unforeseen events, the court, comparing Arts. 17 and 25, held that
the two were not mutually exclusive and that “Article 25 simply
described a subset of ‘accidents’ that are more egregious and to
which a greater degree of culpability attaches.” Tseng, 122 F.3d
104 (JAS2).
Overlooked however was that the two Articles are listed
separately and equally. The discrete placement by the drafters of
substantive matters into separate equal Articles in the Convention
is of dispositive significance for interpretative purposes. Air France
v. Saks, 470 U.S. 392, 407 (1985) (followed by the Eleventh
Circuit in Krys v. Lufthansa, supra, 119 F.3d 1515, 1522 (1997)).
“The ‘accident’ requirement of Article 17” (Saks) is separately
stated and distinct from the “wilful misconduct” provisions of Article
25. Only Article 25 involves scienter — willfulness — for an injury
producing act. Nowhere in the Convention is it stated that an Article
resting on scienter is a “subset” of another Article in which the
keynote is “accident” — or lack of scienter. Just as the Court in
Saks, at pp. 397 and 398, noted the significance of the difference
between “accident” in Article 17 and “occurrence” (in the original
French, “/’événement”) in Article 18, the same reasoning points
up the meaningfulness of difference between Article 17's “accident”
and Article 25’s “wilful misconduct”.
Not only is Article 25’s “wilful misconduct” more egregious
than Article 17’s “accident”. “Wilful misconduct” cannot be
“accidental”, as the Second Circuit pointed out and petitioner has
not disputed.”’
27. New York law is in accord. Locke v. North Gateway Restaurant, Inc.,
233 A.D.2 d 578,579, 649 N.Y.S. 2d 539 (1996). Since by Art. 25(1), willful
misconduct is determinable by New York law (being the law of the court to
which the case is submitted), and as assault and battery and wrongful arrest are
within that category, those torts do not fall within New York's “commonsense”
meaning of accident (a“ ‘sudden, fortuitous mischance, unexpected, out of the
ordinary, and injurious in impact’ ” occurrencs) (Matter of Lichtenstein v. Board
of Trustees of the Police Pension Fund, 57 N.Y. 2d 1010, 1012 (1982)).
36
In interpreting Article 25, and indeed the entire Warsaw
Convention, a familiar rule of treaty construction should be
honored. Geofroy v. Riggs, 133 U.S. 258, 271-2 (1890):
Even where a provision of a treaty fairly admits of two
constructions, one restricting, the other enlarging, rights
which may be claimed under it, the more liberal
interpretation is to be preferred. -
Similarly, Bacardi Corp of America v. Domenech, 311 U.S. 150,
163 (1940).
Hence, even if Article 25 were deemed a mere “subset” of
Article 17 and Article 17 embodying that subset were deemed to
cover Ms. Tseng’s lawsuit, the airline’s willful wrongdoing would
activate the subset’s rejection of Convention clauses which exclude
and limit rights. It would deny availability to the air carrier of
provisions of Article 17 which exclude liability for psychic injury
and limit liability to accidental bodily injuries.“ An “unnatural
reading” of “accident” in Article 17 to include willful wrongs as
accidental and preclude recovery because of these exclusions and
limitations would create an internal inconsistency within the
Convention. It would be “flatly inconsistent” with Article 25 and
should not be allowed. O'Connor v. United States, 479 U.S. 27,
32 (1986).
28. Similarly, in New York, damages for psychic injury flowing from such
willful torts are recoverable. Allinger v. City of Utica, 226 A.D. 2d 1118, 641
N.Y.S. 2d 959 (1996); Byrd v. New York City Transit Authority, 172 A.D. 2d
579, 568 N.Y.S. 2d 629 (1991); Vitale v Hagan, 132 A.D. 2d 468, 517 N.Y.S.
2d 725 (1987), mod. other grounds, 71 N.Y. 2d 955, 528 N.Y.S. 2d 823 (1988)
(cited in /smail vy Cohen, 899 F.2d 183, 187 (2d Cir. 1990)); Cooper v. State,
150 Misc. 2d 635, 569 N. Y.S. 2d 889 (1991).
37
Vill. THE RECENT ENACTMENT OF MONTREAL
PROTOCOL NO. 4 1S NOT ONLY (A) PROSPECTIVE IN
EFFECT ONLY BUT ALSO (B) CONFIRMS THE
NONEXCLUSIVITY OF THE WARSAW CONVENTION
AS A BAR TO THIS CASE.
(A)
Some five years had passed from the time El Al wrongfully
confined, assaulted and battered Ms. Tseng in New York before a
sufficient number of Convention signatories agreed to make it —
and Article 17 — the exclusive basis upon which a passenger could
recover for personal injuries, without making exclusiveness
retroactive to willful tort cases which had already accrued.
In New York, a cause of action for personal injuries is property
which vests in the victim and devolves to his estate on death. N.Y.
Estates, Trusts and Powers Law § 11-3.2; Lancaster v. 46 NYL
Partners, 228 A.D. 2d 133, 138, 651 N.Y.S.2d 440, 444 (1996).
It is frivolous to impart to the just-now sufficiently ratified (June
14, 1998 — (SG #2, 11)) Montreal Protocol No. 4 the unexpressed
retroactive invalidation by treaty of the already accrued New York
causes of action, and retroactively deprive plaintiff of her property.
Toop v. Ulysses Land Company, 237 U.S. 580, 35 S. Ct. 739
(1915). Not even Amicus US, extensively discussing Montreal
No. 4, argues in favor of a retroactive impact on this case. On that
issue US limits itself to contending that it would resolve exclusivity
“at least on a prospective basis”, and that
any doubt about the Convention’s exclusivity would
be decisively resolved, at least as to future cases, by
Montreal Protocol No. 4, if it is ratified by the United
States.
(SG #2, 14).
The concurring opinion of Justice Scalia in Kaiser Aluminum
& Chemical Corp. v. Bonjorno, 494 U.S. 827, at 855, 110 S. Ct.
1570 (1990), is apropos:
38
The principle that the legal effect of conduct should
ordinarily be assessed under the law that existed when
the conduct took place has timeless and universal
human appeal.
The Court later expressed its agreement in Landgraf v. USI Film
Products, 511 U.S. 244, 278 (1994).
(B)
The very adoption of Warsaw Convention modifications
contained in Montreal No. 4 by the Convention signatories, if
indeed the altered Article 24 is read to preclude state willful tort
actions which remain uncovered by the unaltered Article 17 —
hardly a necessary result of Montreal — would then be further
proof that the Article 24 which it changed was limited to accidents
and not broad enough to cover all persona! injury causes as
contended by petitioner. The Protocol had been drafted 18 years
before the events at the EL AL terminal in New York but was not
law governing those events. It was not adopted and made effective
for some 23 years. Breadth to cover “any action”, not just accidents,
was later added and made effective by the June, 1998, adoption of
the Protocol by and for 30 signatories, not yet if ever including
the United States. There would otherwise then have been no reason
to adopt the changes effected by the Protocol if all personal injury
causes, not just those related to accidents, had been covered
originally in the eyes of the international signatories.
As petitioner points out in his brief (Pet Br. 38),
Additional aids to interpretation of the Warsaw
Convention may include the post-ratification conduct
... of the contracting parties to the Convention.
The parties’ post-Convention ratification conduct of ratifying
Montreal No. 4 69 years after the Convention was born in 1929
says worlds of their understanding of the limited effect of Article
24 as it was when the JFK events took place.”
29. The Solicitor General, in addition to Lodging three versions of Montreal
(Cont'd)
39
IX. A FALSE FEAR IS SUBTLY PROMOTED BY
PETITIONER IN THE “CONCLUSION” OF ITS BRIEF
AND BY PETITIONER’S AMICUS AIR TRANSPORT
ASSOCIATION (ATA) THAT THE JUDGMENT BELOW
COMPROMISES AIRCRAFT AND PASSENGER
SAFETY AND PASSENGER RIGHTS, BUT THE
OPPOSITE IS TRUE AND RINGING THAT ALARM ISA
DISTRACTING SMOKESCREEN SCARE TACTIC.
A. Aircraft and Passenger Security and DOT regulation, 14
C.F.R. § 129.25.
Though irrelevant to the Question on which petitioner sought
certiorari and on which it was granted”, petitioner and its ATA
amicus (though notably not amicus US, see SG #2, 29, fn. 21)
improperly seeks to insert the need for air transport security into
the equation. Even if considered, it is meritless.
While petitioner waits for its “Conclusion”, without legal
references, to becloud the case before this Court with a security
scare issue, having omitted it from the body of its brief, its Amicus
ATA devotes an entire section of its brief to it. (ATABr, Point IV).
Referenced most appropriately and unwittingly, but tellingly
against petitioner, is 14 C.F.R. § 129 as an applicable FAA measure
regarding security at airports. (ATABr, 19) The regulation is
applicable, but petitioner cannot rely on it for it did not follow it.
14 C.F.R. § 129.25 Airplane security.
(Cont'd)
Protocol No. 4 with the Clerk, has Lodged what purports to be Montreal Protocol
No. 3 which has never been ratified by the United States or gone into force
anywhere. (SG #2, 12 fn. 7)
30. (Note Sup. Ct. Rule 14(1)(a) limiting review to “the questions set forth
in the petition, or fairly included therein” and Phillips v. Washington Legal
Foundation, __U.S.___ (96-1578, 6/15/98), applying that Rule).
40
(b) Each foreign air carrier *' landing or taking off
in the United States shall adopt and use a security
program, for each scheduled and public charter
passenger operation, that meets the requirements of
{subparagraphs (1)(2)(3)] *
(g) Each foreign air carrier conducting an operation
for which a security program is required by paragraph
(b) (1), (2), or (3) of this section shall refuse to
transport—
(1) Any person who does not consent to a search
of his or her person in accordance with the security
program ... (emph. added)
The consent must be to something. A person cannot “consent”
unless told what she is consenting to. The DOT regulation calls
for no less. It calls for the consent to be “to a search of his or her
person in accordance with the security program”. If EL AL had
complied with § 129.25(g) and informed Tseng of her choices —
either consent to that something — to be confined and subjected
to an intimate body search apparently called for by EL AL’s security
program, or not consent and not fly — there would have been no
tort to complain of. The regulation presupposes she be given the
right to consent or to withhold her consent to a search in accordance
with the security program after being told this airline’s routine
security program procedures include confinement and manual
palpating of the most intimate parts of her anatomy. She was not
told and was not given that right. If she had been informed and
agreed, no unconsented to confinement and touching, which is to
say no false imprisonment and assault and battery, would have
31. The same security requiremen's govern domestic air carriers. 14 C.F.R.
§§ 121.538, 108.9(b)(1).
32. Petitioner has conceded that this entire Regulation applies.
41
resulted. If she declined, she would not have been permitted to
board but would have been allowed to go home free, unconfined
and unviolated.
Petitioner could have protected its flight security according to
its own lights by giving Tseng that choice. She was not given it.
The record shows respondent was not presented with the § 129.25
voluntary alternatives before she was closed off in the room, denied
freedom to leave, and subjected to the offensive intimate body
search depicted by the record.
The requirement that foreign airlines comply with 14 C.F.R.
§ 129.25 explodes the myth that aircraft security would be
compromised should the judgment on appeal be affirmed. The
DOT regulation protects it thoroughly.
Allowing respondent the option implicit in § 129.25 to consent
to be searched or forfeit the flight would not endanger its security
or indeed even be relevant to it. An airline is given full control of
the security precautions it deems necessary for flight safety. Nor
does it even attempt to explain how giving a passenger the choice
either to acquiesce to the airline’s own security procedures or be
kept off the plane would allow security risks to board. By the
balanced federal regulations, the passenger’s right not to submit to
an intimate body search is so protected as to make illusory fears
that aircraft safety would be compromised by an affirmance.”
33. The caveat in People v. Kuhn, 33 N.Y. 2d 203, 210, 351 N.Y.S. 2d
649, 654, 306 N.E. 2d 777, 780 (1973), a criminal case evolving from an airport
security check, is noteworthy:
We do not hold, however, that once the magnetometer is “triggered,
indicating the presence of metal upon a person, a further personal
search or frisk of the passenger is authorized unless it can be shown
that the passenger consents to such search. Failing to consent to a
further search at this point would, of course, bar him from boarding
the plane. Since the sole purpose of the airport security measures
(Cont'd)
42
Affirmance could have no effect whatsoever on international
airline security as frighteningly projected by ATA’s amicus brief.
(ATABr., 20).
B. Passenger Rights
A bogus threat to passengers’ rights against airlines is scaringly
forecast by ATA if the Court affirms. (ATABr, 17). Assuming the
unlikely posture and garb of zealous advocate of passengers’ rights
against its members, it speculates that an affirmance would deprive
American citizens traveling abroad of the benefits of the
Convention and expose them to the vagaries of local foreign law.
They are already exposed. However great its persuasiveness,
this Court’s mandate does not bind those foreign realms. If effect
there be, an affirmance would likely encourage foreign courts not
already so inclined to allow claims for willful airline tort to be
pursued by victimized passengers under local law outside Article
17 which does not cover them. Far from encroaching on other
passenger rights under the Convention, an affirmance will leave
them intact.
(Cont'd)
is to prevent air piracy, there is no need to further search such a
prospective passenger as he will not be permitted to board the
plane and no longer represents a threat as a potential hijacker.
43
CONCLUSION
For the reasons stated above, the judgment should be affirmed.
Respectfully submitted,
ROBERT H. SILK
Counsel for Respondent
401 Broadway
New York, New York 10013-3005
(212) 941-5964
July 31, 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.