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

No. 97-475

In the Supreme Court of the Ginted States

OCTOBER TERM, 1997

FE: AL ISRAEL AIRLINES, LTD., PETITIONER

v.

Tsu YUAN TSENG

ON WRIT OF CERTIORARI?

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

SETH P. WAXMAN

Solicitor General

Counsel of Re cord

DAVID R. ANDREWS FRANK W. HUNGER

Legal Adviser

DAVID S. NEWMAN EDWIN S. KNEEDLER

Attorney-Advise r De puty Solicitor Cr hie ral

De partn ent of State

Washington, D C. 20520

Assistant Attorne y (ryenera

JONATHAN E. NUECHTERLEIN

Assistant 'n thi Va/ rror

General

NANCY E. McC FADDEN ROBERT S. GREENSPAD

General Counsel ALISA B. KLEIN

DAVID B. SALMONS

Attorney:

De partie yr ofr Just (rs

Wash ngton, De MMSBU iwwit

{ Af}? Le |

PAUL M. GEIER

Assistant (rene ral Counse

DALE C. ANDREWS

Deputy Assistant Genera

Counsel ’

Department of

Transportati »?

Wa } ngton., De AO59U

QUESTION PRESENTED

Whether a passenger who suffers personal injury

within the scope of the Warsaw Convention (which

addresses international transportation by air), but

who cannot meet the conditions set forth in Article 17

of the Convention for establishing that a carrier is

liable under the Convention itself, may nonetheless

seek relief under state law.

(I}

TABLE OF CONTENTS

Interest of the United States ............. i Nala tS:

I peboevenuesietpendeceedusenesemneiecnssanes

Summary Of argument ...............c.ccccecescecceceeeooecess.......

Argument:

The Warsaw Conv ention bars suits under local law

for personal injuries that arise within the course of

international air travel but do not meet the Con

vention’s conditions for EN ae ee

A. The Convention forecloses respondent's state

Pa I I

B. Ratification of Montreal Protocol No. 4 ™ the

United States could affect the ¢ ourt’s

consideration of this case .............00.00.......

a pebienianianinimnsiaé =

TABLE OF AUTH( IRITIES

Cases

Abnett v. British Airways PLC, 1 All E.R. 193

Pe inteniateanibandaiceethtientciatt te A 9, 13, 19. 21.

Abramson v. Japan oe Co., 739 F.2d 130

(1984), cert. deni« d, 470 U.S. 1059 « 19R5) -

Air Disaster at Locks rbie. Satins on Dec. 21, 1988.

In re, 928 F 2d 1267 (2d Cir.). cert. denied, 502 17S

920 (1991) seusuneanensansédens

Air Frances v. Saks, 470 U, 392 (1985)

Benjamins v. British Eu ropean Airways, 572 F 2d

Y13 (2d Cir. 1978), cert. denied. 489 U.S 1114

(1979) .... poaumecensemtndduabenedsiensenenatnes —_

Boehringer-Mannhein Diagnostics, Das v. Pan An

World Alrways., Inc.. 737 F 2d 456 (5th Cir 1YS4),

cert. denied, 469 U.S. 1186 (1985)

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

Cir. 1975). cert denied, 429 U S. 890 (1976

:

(Il

Treaties, statutes and rules: Page

Convention for the Unification of Certain Rules |

Relating to International Transportation by Air

(1929) 49 Stat. 3000 (49 U.S.C. 40105 note) ........ passim

Hague Protocol to Amend the Convention for the

Unification of Certain Rules Relating to Interna-

tional Carriage by Air, done Sept. 28, 1955 ........... 4, 10

Protocol to Amend the Convention for the Unifica-

tion of Certain Rules Relating to International

Carriage by Air, done at Guatamala City, Mar. 8,

i ET Se ET te 10, 12, 26, 29

Additional Protocol No. 3 to Amend the Convention

for the Unification of Certain Rules Relating to

International Carriage by Air, done at Montreal.

ee a Se tee eee 10, 12, 26, 27

Additional Protocol No. 4 to Amend the Convention

for the Unification of Certain Rules Relating to

International Carriage by Air, done at Montreal.

fe i a ERR ON ee AR Oe hE passim

Foreign Sovereign Immunities Act of 1976, 28 U.S.C

_ & { aaa eee dias A en Se a SO 5

ji * _ Senne 7

I oo : 6

ke feet AR ra aaa ie aes 7

49 U.S.C. 44901 et seq. ..... 30

14 C.F.R.:

ES ee ee ee ae ae — 29

NE ee ee aaa 29

| REAR ee Ti ee 1s

Miscellaneous:

G.N. Calkins, The Cause of Action Under the Warsaw

Convention, Part I, 26 J. Air. L. & Com. 217

IEEE siienetiaiieintintatitcecneteinmeicdsliieiinate steels qubsucededuunenescesecenes <2

Cassell’s New French Dictionary (5th ed. 1951) ...... 20

144 Cong. Rec. D685 (daily ed. June 23, 1998) ll

International Air Transport Association. Agreement

Relating to Liability Limitations of the Warsaw

Convention, approved by Dep't of Transportation

Order 97-1-2, WL 4834 (D.O.T. Jan. 8, 1997) ....._. 4

Jn the Supreme Court of the United States

OCTOBER TERM, 1997

No. 97-475

EL AL ISRAEL AIRLINES, LTD., PETITIONER

v.

Tsul YUAN TSENG

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

As a party to the Warsaw Convention, the United

States has a substantial interest in the manner in

which the Convention is interpreted by the courts of

this country. In response to this Court’s invitation.

the Solicitor General filed a brief at the petition stage

on behalf of the United States as amicus curiae, re-

commending that the Court grant the petition for a

writ of certiorari limited to the question presented

here.

STATEMENT

1. The Convention for the Unification of Certain

tules Relating to International Transportation by

Air (1929), 49 Stat. 3000 (49 U.S.C. 40105 note),' popu-

larly known as the Warsaw Convention. was designed

to achieve two basic purposes: to “foster uniformity in

the law of international air travel,” Zicherman v.

' This brief cites the various provisions of the Convention

directly. Those provisions are codified at 49 U.S.C. 40105 note

+)

—~

Korean Air Lines Co., 516 U.S. 217, 230 (1996), and to

“limit{ | the liability of air carriers in order to foster

the growth of the fledgling commercial aviation In

du try,” Eastern Airlines, Inc. Vv. Floyd, 499 U.S. 530,

546 (1991) To those ends. the Convention prescribes

an extensive set of legal principles generally applica

ble “to all international transportation of persons,

baggage or goods performed by aircraft.” Art. 1(1);

see generally A. Lowenfeld & A. Mendelsohn, 7h

[Inited States and the Warsaw Convention, SV Harv.

L. Rev. 497 (1967).

At the core of the Convention is a series of pro

visions governing the nature and scope of a carrier's

liability for harms occurring in the course of interna

tional air travel. The Convention divides such harms

into three categories: personal injury (Article 17),

damaged or lost baggage or goods (Article 19), and

damage due to delay (Article 19). Article 17, which is

at issue here. makes carriers “liable for damage sus

tained in the event of the death or wounding of a pas

senger or any other bodily injury suffered by a pas

enger. if the accident which caused the damage so

ustained took place on board the aircraft or in the

course of any of the operations of embarking or dis

mbarking.” It is now generally accepted that a pas

enger satisfying the liability conditions of Article |

|

ya cause of action against a carrier directly

inder the Convention. See Benjamins V. British

European Airways, 572 F.2d 918, 918-919 (2d Cir.

1978). cert. denied, 439 U.d. 1114 (1979); St. Paul In:

(ov. Venezuelan Int'l Airways, Inc., 807 F.2d 1545,

1546 (11th Cir. 1987); Boehringer-Mannhein Diag

vostics. Inc. v. Pan Am. World Airways, Inc., 734

2d 456, 458-459 (5th Cir 1984). cert. denied, 469 U.S.

11 sh 1985): I) re Mexice City Aircrash of Uct. 31

3

1979, 708 F.2d 400, 408-415 (9th Cir. 1983); cf. In re Air

Disaster at Lockerbie, Scotland, on Dec. 21, 1988, 928

F.2d 1267, 1282 (2d Cir.), cert. denied, 502 U.S. 920

(1991).

At the time of the Convention, carriers commonly

made their services contingent on a passenger’s con-

tractual waiver of the right to bring suit for personal

injury, and such waivers were often enforceable in

court. See Pet. App. 53a-54a; Second Int'l Conference

on Private Aeronautical Law, Minutes, Oct. 4-12,

1929, Warsaw 47 (R. Horner & D. Legrez trans. 1975)

(Minutes). To ensure that carriers could not short-

circuit Article 17 (or Articles 18 and 19) in that man-

ner, the delegates to the Convention added Article 23,

which nullifies “[aJny provision tending to relieve the

carrier of liability.” Moreover, to reduce litigation

concerning questions of fault, the delegates added

Article 20, which, when combined with Article 17,

creates a presumption of liability that a carrier can

rebut only by “prov{ing] that he and his agents have

taken all necessary measures to avoid the damage or

that it was impossible for him or them to take such

measures.” Art. 20(1).

The creation of a non-waivable cause of action for

personal injury under Article 17, together with the

presumption of liability added by Article 20, was part

of a larger compromise designed to balance the inter-

ests of passengers against the interests of the nas-

cent airline industry. Two key provisions of the Con-

vention protect that industry’s interests. First, Arti-

cle 22(1) limits the amount that can be recovered in

the event of an accident-related death or bodily injury.

The delegates to the Convention set that limit at

125,000 francs, equivalent in 1929 to approximately

$4900 dollars. See A. Lowenfeld & A. Mendelsohn,

q

supra, 80 Harv. L. Rev. at 499 & n.10; see also Floyd,

499 U.S. at 546. That was a “low amount even by 1929

standards,” Floyd, 499 U.S. at 546, and, over the

years, foreign and domestic airlines have entered into

voluntary, private agreements to waive major aspects

of the liability limitations imposed by the Convention.

See id. at 549.”

‘Second, as a counterpart to Article 23’s prohibition

on attempts by carriers to circumvent the Conven-

tion’s liability regime through contractual waiver

clauses, the delegates added a provision barring pas-

sengers from seeking to circumvent that regime (and

in particular its limitation on damages) by bringing

suit under domestic law outside the terms of the Con-

vention. That provision, Article 24, gives preemptive

effect to Articles 17, 18, and 19, which, as discussed,

respectively address a carrier’s liability for personal

injury, damaged or lost baggage and goods, and delay.

Article 24(1) addresses the latter two categories of

liability: “In the cases covered by articles 18 and 19

* In the most recent such agreement, concluded in 1996, sev-

eral dozen major airlines agreed to waive any limit on com-

pensatory liability for claims arising under, and satisfying the

liability conditions of, Article 17. (Punitive damages remain

unrecoverable. See generally Lockerbie, supra; In re Korean

Air Lines Disaster of Sept. 1, 1983, 932 F.2d 1475 (D.C. Cir.),

cert. denied, 502 U.S. 994 (1991).) Those airlines further

agreed to waive the defense of non-negligence under Article 20

(and thereby effectively agreed to strict liability) for such

claims in an amount up to 100,000 “Special Drawing Rights,”

which, at the current exchange rate, equals approximately

$135,000. See Pet. App. 8a; International Air Transport Asso-

ciation: Agreement Relating to Liability Limitations of the War-

saw Convention, approved by Dep’t of Transportation Order

97-1-2, 1997 WL 4834 (D.O.T. Jan. 8, 1997); see also pp. 10-12

and note 5, infra (discussing Montreal Protocol No. 4 and

Hague Protocol of 1955).

5

any action for damages, however founded, can only be

brought subject to the conditions and limits set out in

this convention.” Article 24(2) then addresses per-

sonal injury: “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.” The delegates added the

final clause (“without prejudice to the questions

* * *") because they could not reach consensus on

the availability of wrongful death actions and, more

generally, on “the questions of who may recover and

what compensatory damages are available to them,”

Zicherman, 516 U.S. at 225; those secondary ques-

tions they therefore “left to domestic law.” See ibid.;

see generally Dooley v. Korean Air Lines Co., 1188.

Ct. 1890 (1998). In contrast, the delegates could and

did agree on rules governing the antecedent question

of which events would subject carriers to personal-

injury liability, and those rules appear in Article 17.

The principal dispute in this case is whether those

rules are exclusive: whether, despite Article 24, a

plaintiff may sue under local law if she cannot satisfy

the conditions of liability under Article 17 for passen-

ger injuries arising during the course of interna-

tional air travel.

2.a. On May 22, 1993, respondent Tsui Yuan Tseng

arrived at John F. Kennedy International Airport in

New York to board a flight to Tel Aviv. Pet. App. 3a-

4a. The flight was provided by petitioner E] Al Israel

Airlines, Ltd., a carrier principally owned by the

State of Israel. C.A. App. A9-A10.° Respondent went

3’ Respondent has previously argued (see Br. in Opp. 9-11)

that, because of Israel’s ownership interest, the Foreign Sover-

eign Immunities Act (FSIA), 28 U.S.C. 1602, et seqg., deprives

6

to El Al’s terminal, presented her ticket and U.S.

passport to an El Al security guard, entered the

terminal building, and proceeded to a security area,

where she was asked routine questions about her des-

tination. Pet. App. 4a. Based on her answers, which

the security guard considered “illogical,” respondent

was classified as a “high risk” passenger. /bid.

Respondent was taken to a private room, where she

was subjected to a security search for explosives and

detonating devices. She was told to lower her pants to

mid-hip level and to remove her shoes, jacket, and

sweater. A female security guard then conducted -an

exhaustive manual search of respondent’s entire body

outside of her clothing. The search lasted 15 minutes,

and it conformed to El Al procedures. See Pet. App.

4a. The parties appear to agree that respondent did

not object to the search and that she had the option of

refusing to submit to it, thereby forfeiting the right

to board the flight. The parties appear to disagree,

however, about whether respondent was told (or

should reasonably have known) that she could assert

that option. See Tseng Br. in Opp. 2-3.

After the search, El] Al personnel determined that

respondent did not present a security risk, and they

permitted her to board the flight. Respondent later

testified that she was “really sick and very upset”

El! Al of the protections of the Warsaw Convention. That sug-

gestion is without merit. The FSIA makes a foreign state and

its agencies “liable in the same manner and to the same extent

as a private individual under like circumstances.” 28 U.S.C.

1606. In this context, that means that the Convention preempts

state-law claims against airlines owned by foreign sovereigns to

the same extent that it preempts such claims against privately

owned airlines. It does not somehow render the former class of

airlines more susceptible than the latter to claims under state

law.

7

during the flight, that she was “emotionally trauma-

tized and disturbed” during her month-long trip to

Israel and thereafter, and that she ultimately had to

undergo medical and psychiatric treatment. Pet. App.

4a. Respondent did not claim, however, to have suf-

fered any physical injury. /d. at 4a-5a, 28a.

b. Respondent brought suit in state court. She

alleged that petitioner “assaulted, and falsely impris-

oned and physically and mentally abused her,” and she

sought $5 million in damages under state-law theories

of tort. C.A. App. Al3. Petitioner removed the case

to federal court pursuant to 28 U.S.C. 1441(d), which

authorizes the removal of any action against a “for-

eign state” as defined in 28 U.S.C. 1603(a). Pet. App.

5a; see C.A. App. A9-A10.

After discovery and a trial, the district court dis-

missed respondent’s claim for personal injury. Pet.

App. 26a-28a. The court first noted that Article 17

creates a cause of action only for injuries suffered as

a result of an “accident,” which this Court has defined

as “an unexpected or unusual event or happening that

is external to the passenger.” /d. at 26a (quoting Air

France v. Saks, 470 U.S. 392. 405 (1985)). The court

determined that, because petitioner “erroneously”

subjected respondent to an “unexpected” full-body

search, the search “is fairly accurately characterized

as an accident,” and the Convention therefore “ap-

plies.” Pet. App. 27a-28a. The court then dismissed

respondent’s personal injury claim on the ground that

Article 17 allows recovery only for bodily injury and

not for the purely psychic injury that respondent had

alleged. Jd. at 28a (citing Floyd, 499 U.S. at 552).

ce. The court of appeals reversed in relevant part.

Pet. App. la-23a. The court first ruled that the

search did not qualify as an “accident” within the

8

meaning of Article 17, reasoning that security

searches “are an anticipated aspect of international

travel,” that the search at issue “was part of the air-

line’s normal procedure,” and that “the Convention

does not aim to derogate from the efforts of interna-

tional air carriers to prevent violence and terrorism,

efforts which are widely recognized and encouraged

in the law.” Pet. App. lla-12a. As a result, “under the

terms of Article 17 of the Warsaw Convention, [peti-

tioner] may not be held liable in damages to [respon-

dent].” Jd. at 14a.

The court then held, however, that the Convention

does not exclusively define the circumstances under

which passengers may recover for personal injuries

sustained in the course of international air travel.

Pet. App. 14a-23a. According to the court, Article 24

“clearly states that resort to local law is precluded

only where the incident is ‘covered’ by Article 17,

meaning where there has been an accident, either on

the plane or in the course of embarking or disembark-

ing, which led to death, wounding or other bodily

injury.” Jd. at 15a. To preclude resort to local law

where a plaintiff cannot meet the liability criteria

under Article 17, the court believed, “would require

rewriting Article 24 or Article 17, a task only the

signatories to the Convention may undertake.” /d. at

15a-16a.

The court sought support for its construction of

Article 24 in the drafting history of the Convention,

Pet. App. 16a-17a, and in the Convention’s underlying

purposes, id. at 18a-23a. The court recognized that

“one of the two primary purposes of the Convention

was to shield carriers from financial catastrophe fol-

lowing in the wake of a major accident,” but it con-

cluded that “the Convention does not purport to insu-

9

late carriers from the ordinary risks of doing busi-

ness, such as keeping their facilities in good repair.”

Id. at 19a. Finally, the court held that, as interpreted

by this Court in Zicherman, “the Convention ex-

presses no compelling interest in uniformity that

would warrant us in supplanting an otherwise applica-

ble body of law, here state law.” Jd. at 21a.‘

In narrowly construing Article 24, the court of ap-

peals deepened a conflict in judicial authority on

whether the Convention exclusively defines the con-

ditions for personal injury liability in the context of

international air travel. As the court recognized

(Pet. App. 18a-21a), its decision in this case, like the

Third Circuit’s decision in Abramson v. Japan Air-

lines Co., 739 F.2d 130 (1984), cert. denied, 470 U.S.

1059 (1985), is in conflict with the Fifth Circuit’s

decision in Potter v. Delta Air Lines, Inc., 98 F.3d 881

(1996), and with the British House of Lords’ recent

decision in Abnett v. British Airways PLC, 1 All

E.R. 193 (1996) (reprinted at Pet. App. 34a-65a) (re-

ferred to as Sidhu v. British Airways in the decision

below). See also Arys v. Lufthansa German Air-

lines, 119 F.3d 1515, 1518 n.8 (11th Cir. 1997), cert.

denied, 118 S. Ct. 1042 (1998).

3. This Court granted certiorari on May 18, 1998.

118 S. Ct. 1798. Since then, the Senate Foreign Rela-

tions Committee has voted to report to the full Senate

certain treaty amendments that, if ratified, could

* Respondent also alleged, in addition to her personal injury

claim, a claim for lost baggage. See Pet. App. 5a. The district

court ruled that the claim had merit and awarded her $1034.90

in damages. /d. at 32a-33a. Without analysis, the court of ap-

peals rejected petitioner’s cross-appeal challenging that award.

Id. at 23a. This Court did not grant review of the second ques-

tion presented in the petition, which challenged the court of

appeals’ judgment on that issue. 118 S. Ct. 1793 (1998).

10

affect how this Court might choose to dispose of this

case.

In January 1977, President Ford transmitted to the

Senate Montreal Protocol No. 4, which would amend

substantial portions of the Warsaw Convention, in-

cluding Article 24. See Message from the President

of the United States Transmitting Two Related Pro-

tocols Done at Montreal on September 25, 1975

(Transmittal Letter); Additional Protocol No. 4 to

Amend the Convention for the Unification of Certain

Rules Relating to International Carriage by Air,

done at Montreal, Sept. 25, 1975 (Montreal Protocol

No. 4).° As this Court has observed, both Montreal

Protocol No. 4 and a separate Montreal Protocol No. 3

(which largely incorporates the Guatemala City Pro-

tocol of 1971)’ have remained in the Senate, unratified,

® On July 1, 1998, we notified this Court by letter of the

Senate’s renewed consideration of Montreal Protocol No. 4.

We have lodged with the Clerk of this Court copies of that

Protocol, President Ford’s transmittal letter, and the Hague

Protocol of 1955, which Articles XVII and XIX of Montreal

Protocol No. 4 incorporate by reference and which had not

previously been ratified by the United States. The Hague

Protocol would itself add or amend several provisions of the

Warsaw Convention that are not directly at issue here. See,

e.g., Hague Protocol to Amend the Convention for the Unifica-

tion of Certain Rules Relating to International Carriage By

Air, done Sept. 28, 1955, Arts. XI (raising personal injury dam-

ages cap to 250,000 francs), XII (addressing contractual provi-

sions “governing loss or damage resulting from the inherent

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

® See Additional Protocol No. 3 to Amend the Convention

for the Unification of Certain Rules Relating to International

Carriage by Air, done at Montreal, Sept. 25, 1975 (Montreal

Protocol No. 3), Art. VII(2); Protocol to Amend the Convention

for the Unification of Certain Rules Relating to International

Carriage By Air, done at Guatemala City, Mar. 8, 1971 (Guate-

mala City Protocol).

1]

since the President transmitted them. See Floyd, 499

U.S. at 549-550; Saks, 470 U.S. at 403. Indeed, until

June 1998, Montreal Protocol No. 4 had not taken

effect in any country because, by its terms, the

Protocol does not enter into force until after 30

signatories have deposited their instruments of rati-

fication with the Government of Poland. See Mont-

real Protocol No. 4, Art. X VIII.

We have been informed that on June 14, 1998, after

the 30-nation condit‘on was finally met, Montreal

Protocol No. 4 entered into force in the countries that

had ratified it. Subsequently, on June 23, 1998, the

Senate Foreign Relations Committee voted to order

that Montreal Protocol No. 4 be reported favorably to

the full Senate. See 144 Cong. Rec. D685 (daily ed.).

We have been further informed that the completion of

the Committee’s official report recommending rati-

fication is expected in the near future.

Among other provisions (see generally Transmittal

Letter v-viii), Montreal Protocol No. 4 would amend

Article 24 of the Warsaw Convention to read: “Jn the

carriage of passengers and baggage, any action for

damages, however founded, can only be brought

subject to the conditions and limits set out in this

Convention, without prejudice to the question as to

who are the persons who have the right to bring suit

and what are their respective rights.” Montreal Pro-

tocol No. 4, Art. VIII (emphasis added). The Senate

Foreign Relations Committee has previously stated

that similar language in the Guatemala City Protocol

“makes clear” that the Convention’s “conditions and

limits” apply to any “actions for damages” sustained

during the course of international air travel. S. Exec.

Rep. No. 21, 101st Cong., 2d Sess. 15 (1990) (1990

12

Senate Report); accord S. Exec. Rep. No. 45, 97th

Cong., Ist Sess. 12 (1981).’

SUMMARY OF ARGUMENT

Article 24 of the Warsaw Convention provides that,

“liJn the cases covered by article 17,” “any action for

damages, however founded, can only be brought sub-

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

vention.” Those “conditions and limits” include the

substantive conditions for personal injury liability

set forth in Article 17 itself. The “exclusivity” ques-

tion presented here—whether the Convention pre-

cludes suits under local law where a passenger can-

not meet those substantive liability conditions—thus

’ The Guatemala City Protocol, which was largely incorpo-

rated by Montreal Protocol No. 3 (see 1990 Senate Report at

12), provides: “In the carriage of passengers and baggage any

action for damages, however founded, whether under this Con-

vention or in contract or in tort or otherwise, can only be

brought subject to the conditions and limits of liability set out in

this Convention, without prejudice to the question as to who

are the persons who have the right to bring suit and what are

their respective rights.” Jd. at 35. If both Montreal Protocols

were ratified, as the 1990 Senate Report had conditionally rec-

ommended, that language, like other “provisions * * * con-

cerning passengers and baggage,” would have prevailed over

the slightly different language of Montreal Protocol No. 4. See

Montreal Protocol No. 4, Art. XXIV(b). In its most recent ac-

tion, however, the Foreign Relations Committee has recom-

mended that the Senate ratify only Montreal Protocol No. 4.

(We have been informed that, like the Guatemala City Proto-

col, Montreal Protocol No. 3 has not entered into force in any

country.) We have found no indication that the differences in

language between the Guatemala City Protocol and Montreal

Protocol No. 4 were intended to have any bearing on the issue

presented here. Finally, Montreal Protocol No. 4, unlike the

Guatemala City Protocol (see Floyd, 499 U.S. at 549-550),

makes no amendment to Article 17.

13

turns on the meaning of Article 24(2)’s introductory

clause: in the governing French (see Zicherman v.

Korean Air Lines Co., 516 U.S. 217, 225 n.3 (1996)),

“[djans les cas prévus & l'article 17.” Literally trans-

lated, that clause means “in the circumstances antici-

pated [or ‘foreseen’] in Article 17.” The court of

appeals narrowly construed that language to denote

only those cases in which a plaintiff can in fact satisfy

the liability conditions of Article 17. Under that

interpretation, if a plaintiff cannot satisfy Article 17’s

liability conditions, she may, for that reason alone,

bring suit under local law to evade all of the “con-

ditions and limits set out in this convention.”

That view of Article 24 is incorrect, as the British

House of Lords held in Abnett v. British Airways

PLC, 1 All E.R. 193 (1996) (reprinted at Pet. App. 34a-

65a). Article 24(2) refers to Article 17 simply as a

shorthand to denote the class of all cases involving

personal injuries to passengers (which Article 17

comprehensively “anticipates”) and to distinguish

those cases from cases involving damaged baggage or

delay, to which Article 24(1) refers with the parallel

phrase “les cas prévus aux articles 18 et 19.” Article

24(2) thus provides that Article 17 sets forth the

exclusive conditions under which a carrier can be

subjected to liability for personal injuries suffered by

a passenger in the course of international air travel.

Unlike the court of appeals’ approach, that inter-

pretation of Article 24 respects. the Convention’s

overriding objective, expressed in the preamble, of

“regulating in a uniform manner the conditions of in-

ternational transportation by air in respect of * * *

the liability of the carrier.” And both the negotiating

history of the Convention and the postratification

understanding of the contracting parties (see gener-

14

ally Zicherman, 516 U.S. at 226) support the same

interpretation.

As previously discussed, after this Court had

granted certiorari, the Senate Foreign Relations

Committee ordered that Montreal Protocol No. 4,

which has remained in the Senate since President

Ford first transmitted it in January 1977, be favorably

reported to the full Senate. Among other things, the

Protocol would amend the introductory clause at

issue here (“[iJn the cases covered by article 17”) to

read: “(ijn the carriage of passengers and baggage.”

Where ratification has made it applicable, the Pro-

tocol would resolve, at least on a prospective basis,

any doubt about the Convention’s broad exclusivity in

personal injury matters. At the same time, ratifica-

tion of the Protocol by the United States would di-

minish the continuing legal significance of a decision

in this case. We will keep the Court apprised of fur-

ther developments concerning ratification of the Pro-

tocol.

ARGUMENT

THE WARSAW CONVENTION BARS SUITS UNDER

LOCAL LAW FOR PERSONAL INJURIES THAT

ARISE WITHIN THE COURSE OF INTERNA-

TIONAL AIR TRAVEL BUT DO NOT MEET THE

CONVENTION'S CONDITIONS FOR LIABILITY

The parties and the courts below have based their

analysis of this case on the Warsaw Convention in its

original form, which (as of the filing of this brief)

remains in force in the United States. As discussed

in Point A below, the Convention, even in that origi-

nal form, bars this state law action because respon-

dent cannot satisfy the Convention’s own liability

conditions. Moreover, any doubt about the Conven-

tion’s exclusivity would be decisively resolved, at

15

least as to future cases, by Montreal Protocol No. 4, if

it is ratified by the United States. In Point B below,

we discuss how ratification of the Protocol could af-

fect the proper disposition of this case.

A. The Convention Forecloses Respondent's State

Law Damages Action.

The task of interpreting a treaty “begin[s] with the

text of the treaty and the context in which the

written words are used.” Eastern Airlines, Inc. v.

Floyd, 499 U.S. 530, 534 (1991) (internal quotation

marks omitted). It is inappropriate, however, to

expect multilateral treaties, negotiated and drafted by

numerous international delegates, to meet the stan-

dards of linguistic precision applicable to private con-

tracts and domestic statutes. For that reason, “trea-

ties are construed more liberally than private agree-

ments, and to ascertain their meaning [the Court]

may look beyond the written words to the history of

the treaty, the negotiations, and the practical con-

struction adopted by the parties.” Jd. at 535; see also

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

226 (1996).

1. The Convention is divided into several chapters,

two of which are at issue here: Chapter I (Arts. 1-2),

entitled “Scope—Definitions,” and Chapter III (Arts.

17-30), entitled “Liability of the Carrier.” As their

titles suggest, Chapter I defines the scope of the Con-

vention, and Chapter III defines the circumstances,

within that scope, in which the Convention makes a

carrier liable for various harms.

The central scope provision of Chapter 1—Article

1(1)—provides that “[t]his convention shall apply to

all international transportation of persons, baggage,

or goods performed by aircraft,” either “for hire” or

“ratuitous[ly].” That is general language, and other

16

provisions of the Convention clarify, for different

contexts, when a person or item of baggage is within

“international transportation * * * by aircraft” for

purposes of Article 1(1). In particular, Article 17

makes clear that, in the specific context of suits for

personal injury, the Convention addresses a carrier’s

liability to “passenger[s]” for harms occurring “on

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

tions of embarking or disembarking.” See generaily

Air France v. Saks, 470 U.S. 392, 401-402 (1985).” Be-

cause the Convention’s preemptive effect on local law

extends no further than the Convention’s own sub-

stantive scope, a carrier is indisputably subject to

liability under local law for injuries arising outside of

that scope: e.g., for passenger injuries occurring be-

fore “any of the operations of embarking.” Cf. Pet.

App. 20a-2la (expressing concern that wrongdoers not

escape liability for accidents on airport escalators).

The question presented here, however, is whether a

carrier may be found liable under local law for per-

sonal injury arising within the scope of the Con-

vention—during “international transportation of per-

sons * * * by aircraft” (Art. 1(1))—if the injured

passenger cannot satisfy the substantive conditions

for liability under the Convention itself. Article 17

* Similarly, Article 18 provides that, as to baggage and

goods, transportation by air generally “comprise[s] the period

during which the baggage or goods are in charge of the car-

rier, whether in an airport or on board an aircraft,” but “shall

not extend to any transportation by land, by sea, or by river

performed outside an airport,” except in certain limited cir-

cumstances. Art. 18(2). As discussed below (pp. 25-26 and note

16), the delegates split Articies 17 and 18 into separate provi-

sions in part because Article 1(1)’s scope provision needed to be

clarified in two different ways in the two distinct contexts

addressed by Articles 17 and 18.

17

sets forth two such conditions. First, the event caus-

ing the plaintiff's injury must have been an “acci-

dent” in the specialized sense applicable here: it must

have been both “unexpected or unusual” and “external

to the passenger.” Saks, 470 U.S. at 405 (hearing loss

caused by normal loss of cabin pressure does not

qualify as “accident”); see also note 11, infra. Second,

the harm itself must take the form of “death or * * *

bodily injury.” See Floyd, supra (Article 17 does not

create cause of action for mental anguish caused by

narrowly averted crash). This Court has twice de-

clined to address whether a plaintiff, unable to satisfy

one or the other of those liability conditions, may

nonetheless bring a cause of action under state law.

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

This case squarely presents that question of ex-

clusivity. The parties and courts below have all as-

sumed—correctly, we believe—that the security

search in question, although conducted in an airport

terminal building before the flight, occurred in “in-

ternational transportation” (Art. 1(1)): that is, “in the

course of any of the operations of embarking or

disembarking” (Art. 17). See, e.g., Pet. App. 14a.’ It is

® In determining whether a plaintiff was injured during op-

erations of embarkation, the courts of appeals focus on the

plaintiff's location and activity and on the extent to which the

airline exercised control over the plaintiff at the time the in-

jury occurred. See, e.g., Schroeder v. Lufthansa German Air-

lines, Inc., 875 F.2d 613, 617 (7th Cir. 1989); Evangelinos v.

Trans World Airlines, Inc., 550 F.2d 152, 155 (8d Cir. 1977) (en

banc); Martinez Hernandez v. Air France, 545 F.2d 279, 282

(1st Cir. 1976), cert. denied, 430 U.S. 950 (1977); Day v. Trans

World Airlines, Inc., 528 F.2d 31, 33 (2d Cir. 1975), cert.

denied, 429 U.S. 890 (1976). Cf. Maugnie v. Compagnie Nation-

ale Air France, 549 F.2d 1256, 1262 (9th Cir.) (applying slightly

different “totallity of the] circumstances” test), cert. denied,

18

therefore undisputed that, in that respect, the events

at issue fall within the scope of the Convention.”

It is also undisputed that respondent could not meet

the conditions for liability set forth in Article 17.

The court of appeals reached that conclusion on the

ground that the search in question was not an

“accident” within the meaning of Article 17. See Pet.

App. 14a. Although petitioner had urged the court of

appeals to affirm the district court’s finding that the

search was in fact an “accident,” petitioner conceded

at the petition stage, for purposes of this Court’s

review, that the court of appeals’ disposition of that

threshold issue was correct (see Pet. i (questions

presented), 7), and respondent agreed (see Br. in Opp.

13). We believe that it would be appropriate for this

Court to accept the parties’ agreement on that issue.”

431 U.S. 974 (1977). The security search at issue here would

appear to satisfy those tests.

” Article 25 of the Warsaw Convention provides that “willful

misconduct” disqualifies a carrier from availing itself “of the

provisions of this convention which exclude or limit [its] liabil-

ity.” (If ratified, Montreal Protocol No. 4 would substantially

amend Article 25. See note 11, infra.) In both the district

court and the court of appeals, respondent relied on Article 25

as a basis for “tak[ing] the case outside the Convention’s limita-

tions of liability.” Pet. App. 27a. As we noted in our amicus

brief at the petition stage (at 12-13), Article 25 is not at issue in

this case. After trial, the district court specifically found, as a

factual matter, that petitioner’s actions were not willful, Pet.

App. 27a, and respondent did not properly preserve any chal-

lenge to that finding either in the court of appeals or in her

brief in opposition to certiorari (which does not even cite

Article 25). See Sup. Ct. R. 15.2.

The definition of “accident” has been “flexibly applied”

in this context to include not just inadvertent harms, but reck-

less and even intentional torts as well, such as “torts committed

by terrorists.” Saks, 470 U.S. at 405. The term is often given

19

But even if there were some basis for uncertainty

about the proper characterization of this search, cf.

Saks, 470 U.S. at 405, this case would still present the

core question of the Convention’s exclusivity. That

is so because respondent’s claim fails to meet an

independent condition for liability under Article 17:

she has not alleged that she suffered a “bodily injury”

within the meaning of that provision. See Tseng C.A.

Br. 16, 19, 20, 24; see also Br. in Opp. 4.”

a similarly expansive meaning in the context of insurance law:

“In the absence of a policy provision on the subject, there is

much support for the view that injury or death intentionally

inflicted by a third person upon the insured is nevertheless due

to accident or accidental means where it was neither foreseen,

expected, nor anticipated by the insured.” F. Tinio, Accident

Insurance: Death or Injury Intentionally Inflicted by Another

as Due to Accident or Accidental Means, 49 A.L.R.3d 673, 678

(1973) (emphasis added; footnotes omitted). The expansive

scope of the term “accident” is one answer to the court of ap-

peals’ concern (Pet. App. 20a) that carriers not escape liability

for their intentional torts. See also id. at 64a-65a (Abnett deci-

sion); ef. Warsaw Convention, Art. 25(1) (“{t}he carrier shall

not be entitled to avail himself of the provisions of this con-

vention which exclude or limit his liability,” if the carrier or its

agent, acting within the scope of his employment, acts with

“willful misconduct”); Montreal Protocol No. 4, Arts. IX, X

(amending Article 25 to provide that “the limits of liability

specified in Article 22 shall not apply if it is proved that the

damage resulted from an act or omission of the carrier, his

servants or agents, done with intent to cause damage or reck-

lessly and with knowledge that damage would probably result;

provided that, in the case of such act or omission of a servant

or agent, it is also proved that he was acting within the scope of

his employment.”); note 10, supra (discussing Article 25).

2 Disputes about the Convention’s exclusivity arise most

commonly in cases (such as Saks) in which the plaintiff has

suffered physical injuries but the cause of those injuries was not

an “accident,” rather than in cases (such as Floyd) in which the

plaintiff’s injuries were caused by an “accident” but are not

20

2. Article 24 governs the ultimate legal dispute in

this case: whether a passenger’s failure to meet the

liability conditions of Article 17 precludes recovery

under local law for events falling within “interna-

tional transportation * * * by aircraft” (Art. 1(1)).

Read together, the two paragraphs of Article 24

provide that, “{iJn the cases covered by article 17,”

“any action for damages, however founded, can only be

brought subject to the conditions and limits set out in

this convention.” Cf. p. 5, supra (discussing final

clause of Article 24(2)). In other words, “{iJn the

cases covered by article 17,” an injured passenger

may sue an airline for personal injury only if she

meets all of the various “conditions” of, and “limits”

on, liability set forth in the Convention. The central

question is the meaning of the phrase that triggers

Article 24’s preemptive effect: “cases covered by arti-

cle 17.”

In the governing French text (see Zicherman, 516

U.S. at 225 n.3), that phrase reads, “[djans les cas

prévus a l’article 17,” which, literally translated,

means “in the circumstances anticipated [or ‘fore-

seen’] in Article 17.” See Cassell’s New French Dic-

tionary 130, 565-566 (5th ed. 1951). There are two

“bodily” in character. In our view, however, the ultimate an-

swer to the exclusivity question should be the same in both

situations. Either the Convention permits liability under local

law if the “accident” and “bodily injury” conditions for liability

under Article 17 are unmet, or it does not; there is no persua-

sive reason why the answer to that question should turn on

which of those conditions is unmet. But ef. Pet. App. 27a-28a

(seeming to assume that Convention “applies,” and is given

preemptive effect, if and only if injury-causing event qualifies

as an “accident”); Krys v. Lufthansa German Airlines, 119

F.3d 1515, 1518 n.8 (11th Cir. 1997) (similar), cert. denied, 118

S. Ct. 1042 (1998).

21

ways to interpret that phrase. In respondent’s view,

and in the view of the court of appeals, the phrase

narrowly denotes the cases in which the plaintiff

could actually bring a cause of action under Article

17. Under that approach, a plaintiff who could not

satisfy the liability conditions of Article 17 could

nonetheless bring a cause of action under local law,

and—precisely because she could not satisfy Article

17’s conditions—she would be free of all of the “con-

ditions and limits set out in this convention.”

Under the alternative interpretation, the phrase

“les cas prévus a l’article 17” serves as a shorthand

for personal injury cases in general—which Article

17 addresses (or “anticipates”) comprehensively—

and distinguishes that class of cases from cases

involving damaged or lost luggage and delay, to which

Article 24(1) refers with the parallel phrase “les cas

prévus aux articles 18 et 19” (see Zicherman, 516

U.S. at 225 n.3). That is the interpretation adopted by

the British House of Lords at Abnett v. British

Airways PLC, supra (reprinted at Pet. App. 34a-65a).

See also M. Milde, The Problems of Liabilities in

International Carriage By Air 55-56 (A. Kafka

trans. 1969). Under that interpretation, any personal

injury action brought by a passenger against a

carrier for events arising in international air travel

would be “subject to the conditions and limits of this

convention.” Because those “conditions” and “limits”

include Article 17’s substantive conditions for carrier

liability, see In re Korean Air Lines Disaster of

Sept. 1, 1983, 932 F.2d 1475, 1488-1489 (D.C. Cir.), cert.

denied, 502 U.S. 994 (1991), that interpretation of

Article 24 would preclude suits under local law where

those conditions are unmet—e.g., where the passen-

ger suffered no “bodily injury,” see Floyd, supra, or

22

where the injury did not arise from an “accident,” see

Saks, supra. For several reasons, we believe that

this is the more faithful reading of the Convention.

First, this reading is consistent with the Conven-

tion’s explicit textual insistence on international

uniformity in the legal principles defining the cir-

cumstances under which a carrier will be exposed to

liability." Indeed, the first substantive sentence of

the Convention, contained in the preamble, empha-

sizes the necessity of “regulating in a uniform man-

ner the conditions of international transportation by

air in respect of * * * the liability of the carrier.”

To achieve such uniformity, the Convention estab-

lishes a comprehensive set of legal principles govern-

ing the three major categories of liability (including

personal injury) associated with international air

travel, and it declares that those principles, along

with the rest of the Convention, “shall apply to all

international transportation of persons, baggage, or

goods performed by aircraft.” Art. 1(1); see also Min-

utes, supra, at 213 (remarks of British delegate) (Ar-

ticle 24 “touches the very substance of the Conven-

tion, because [it] excludes recourse to common law”);

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

saw Convention, Part I, 26 J. Air L. & Com. 217, 227

(1959) (“the evidence is overwhelming that the confer-

ence reaffirmed the theory throughout that the con-

vention would establish a system of liability complete

in itself”). It is most unlikely that, despite those

textual aspirations to legal uniformity, the Conven-

tion was intended to subject carriers to radically non-

uniform liability under the peculiar legal regimes of

As noted on p. 5 above, those principles are distinct from

the remedial issues that the delegates expressly left for resolu-

tion under domestic law. See Zicherman, 516 U.S. at 230-231.

23

the various signatories for injuries incurred during

international air travel."

Second, the structure of the Convention is far more

consistent with a broad view of Article 24 than with

the court of appeals’ interpretation. One provision

illustrating that point is Article 23, which generally

invalidates “[aJny provision [in a travel contract]

tending to relieve the carrier of liability” to pas-

sengers. Cf. note 5, supra. By its terms, that pro-

vision appears applicable to any provision relieving

carriers of any kind of liability to which they might

be subject after ratification of the Convention. But

the delegates’ intricate compromise between the in-

terests of passengers and the interests of carriers

(see pp. 3-5, supra) would be defeated if the Con-

vention were construed not only to bar a carrier from

contracting out of its limited liability under the

Convention itself, but also to perpetuate its exposure

4 The court of appeals erroneously sought support for its

contrary position in the fact that the delegates amended the

formal title of the Convention “to refer to the unification of

‘certain rules,” rather than all rules, relating to international

transportation by air. Pet. App. 16a-17a. As the House of

Lords aptly observed in Abnett, however, it is undisputed, and

immaterial to the present analysis, that “the Convention is con-

cerned with certain rules only, not with all the rules relating to

international carriage by air. * * * Nothing is said in this

Convention about the liability of passengers to the carrier, for

example. Nor is anything said about the carrier’s obligations of

insurance, and in particular about compulsory insurance

against third party risks.” Jd. at 50a. The question presented

here, however, is whether the Convention “unifies the rules”

governing a subject that it does address: a carrier’s liability to

passengers for personal injury.

24

to unlimited liability under local law and to prevent

it from contracting out of that liability as well.”

That the court of appeals’ approach would produce

such an asymmetric result strongly suggests that

the delegates intended for Article 17 to speak compre-

hensively to the subject of a carrier’s liability to pas-

sengers for personal injuries arising in international

air travel. As the House of Lords concluded in

Abnett, those delegates did not intend for the courts

of the various signatories to “set[] alongside the

Convention * * * an entirely different set of rules

which would distort the operation of the whole

scheme.” Pet. App. 65a; see also id. at 58a-56a (noting

other anomalies). That view of the House of Lords, as

the final legal position of a sister signatory, is “en-

titled to considerable weight.” Saks, 470 U.S. at 404.

Third, the drafting history of the Convention also

supports a broad view of Article 24. See generally

Zicherman, 516 U.S. at 226 (reaffirming role of nego-

tiating history in interpretation of treaties). The

question of Article 17’s exclusivity typically arises in

cases in which the event causing a passenger’s injury

was not an “accident”—in the broad sense applicable

in this specialized context—because it was not “un-

expected or unusual” and “external to the passenger.”

Saks, 470 U.S. at 405. The addition of the “accident”

The court of appeals reasoned that the Convention was

designed to protect carriers only against potentially ruinous li-

ability for “catastrophic incident{s].” Pet. App. 20a. But the

Convention draws no distinction between “catastrophic” and

“non-catastrophic” incidents. Indeed, by addressing a carrier's

liability for damages due to delay (see Articles 19 and 24), the

Convention makes clear that it sets forth a comprehensive

system of liability for travel-related harms of all kinds, whether

catastrophic or not. See also Minutes, supra, at 54-58 (discuss-

ing need for provision imposing liability for delay).

25

requirement came late in the drafting process; in the

penultimate draft, all sources of carrier liability were

grouped in a single Article, which, inter alia, made a

carrier liable “in the case of death, wounding, or any

other bodily injury suffered by a traveler.” Minutes,

supra, at 264-265 (quoted in Saks, 470 U.S. at 401); see

also id. at 205-206. That Article was split in three,

and recast into what are now Articles 17, 18, and 19,

“primarily because delegates thought that liability

for baggage should commence upon delivery to che

carrier, whereas liability for passengers should com-

mence when the passengers later embark upon the

aircraft.” Saks, 470 U.S. at 402; see also Minutes,

supra, at 212-213, 229 (noting need to split Article 24

into separate subsections to accommodate creation of

separate Articles 17, 18, and 19).

In adding the final clause of what is now Article 17

—“if the accident which caused the damage so sus-

tained took place on board the aircraft or in the

course of any of the operations of embarking or disem-

barking”—the delegates accomplished two basic ob-

jectives: first, they clarified that carriers would be

liable for injuries that were triggered by events

occurring during (or around the time of) the flight but

did not become manifest until later, see Minutes,

supra, at 166-167," and, second, they ensured that car-

riers would be liable only for events properly char-

acterized as “accident(s],” see Saks, 470 U.S. at 405.

In securing the latter objective, the delegates sought,

of course, to confine the scope of a carrier’s liability

under the Convention. We have found nothing in the

% See also Minutes, supra, at 80-84 (discussing need to dis-

tinguish harm to passengers from harm to baggage in fixing

point in travel at which events could subject carrier to liabil-

ity).

Convention’s drafting history to suggest that the

delegates intended, at the same time, to expand the

scope of a carrier’s unlimited liability under local law.

But that would be the obvious (and very significant)

consequence of their drafting change if the court of

appeals’ interpretation of the Convention’s exclusiv-

ity provision were correct. The delegates’ failure to

endorse that consequence—er even to acknowledge it

—suggests that the court of appeals’ interpretation is

not correct, and that the Convention bars actions

under local law where a plaintiff could not satisfy

Article 17's liability conditions.”

A similar conclusion follows from the substance of

several formal proposals to amend the Warsaw Con-

vention. “Because a treaty ratified by the United

States is not only the law of this land, see U.S.

Const., Art. II, § 2, but also an agreement among sov-

ereign powers, [this Court has] traditionally consid-

ered as [an] aid{ | to its interpretation * * * the

postratification understanding of the contracting

parties.” Zicherman, 516 U.S. at 226. As discussed

above (pp. 11-12 and note 7), Montreal Protocol No. 4,

like the Guatemala City Protocol and Montreal Pro-

tocol No. 3, would replace the current introductory

clause of Article 24(2) at issue here (“{iJn the cases

covered by Article 17”) with the phrase “[iJn the

carriage of passengers and baggage.”" The chief pur-

"As observed in note 2 above, many international carriers

voluntarily agreed in 1996 to waive the treaty-based limit on

exposure to compensatory (though not punitive) liability. Such

private agreements do not, of course, “purport to change or

clarify the provisions of Article 17,” and they “do[] not and

cannot purport to speak for the signatories” to the Warsaw

Convention. Floyd, 499 U.S. at 549.

® The Guatemala City Protocol, largely incorporated by

Montreal Protocol No. 3, would have extended the liability

27

pose of that change is simply to distinguish cases

involving harm to “passengers and baggage” from

those involving harm to “cargo,” to which different

liability standards would apply. See, e.g., Montreal

Protocol No.4, Art. VIII; see also Guatemala City

Protocol, Art. IX. At the same time, the proposed

change in the introductory clause also makes abun-

dantly clear that the Convention’s “conditions” for,

and “limits” on, liability apply to all suits by passen-

gers for personal injuries arising in the course of

international air travel, not just those in which the

plaintiff could in fact satisfy the liability conditions of

Article 17. See pp. 11-12, supra.

_ We have found no indication that the amendment to

the introductory clause was designed to alter the

Convention’s preemptive effect on personal injury

actions under local law.” That, however, would be the

quite consequential effect of the proposed change if

the court below were correct in believing that Article

24(2)’s original introductory clause (“liJn the cases

provision of Article 17 to any “event which caused the death or

injury” of a passenger, provided that the death or injury did

not result “solely from the state of health of the passenger.”

See Saks, 470 U.S. at 403-404. Montreal Protocol No. 4, by

contrast, contains no amendment to Article 17.

% The present version of the proposed new introductory

clause emerged in the drafting of the Guatemala City Protocol.

At their ninth meeting, held on March 5, 1971, the delegates

replaced the interim language “In the cases covered by Article

17 and in cases of delay of passengers and baggage” with “In

the carriage of passengers and baggage.” See 1 International

Civil Aviation Org., International Conference on Air Law, (ua-

temala City, Feb.-Mar. 1971 (Minutes) 301; 2 International Civil

Aviation Org., International Conference on Air Law, Guate-

mala City, Feb.-Mar. 1971 (Documents) 172. There was no ob-

jection to that change, proposed by the Irish and Swedish dele-

gates, and it was adopted without substantive discussion.

28

covered by Article 17”) confined the Convention's pre-

emptive effect to cases in which a plaintiff could

satisfy the liability conditions of Article 17. The

noncontroversial removal of that original clause in

the drafting of the subsequent protocols suggests

that the decision below is not correct; that the clause

has not been understood to confine the Convention’s

preemptive effect to cases in which Article 17’s liabil-

ity criteria are met; and that the clause is instead

interchangeable with, and substantively identical to,

the proposed new language that would replace it.

That conclusion would be fortified by, but is not

ultimately dependent upon, ratification by the United

States of Montreal Protocol No. 4, which has now

entered into force in the numerous other countries

that have ratified it.

B. Ratification of Montreal Protocol No. 4 By The

United States Could Affect The Court's Consid-

eration Of This Case

After this Court granted certiorari, Montreal Pro-

tocol No. 4 entered into force on June 1998 in the

countries that had ratified it, and, shortly thereafter,

the Senate Foreign Relations Committee voted to

report the Protocol to the full Senate for its consi-

deration. See pp. 10-11, supra. As of the filing of this

brief, the Senate had not yet taken action on the

matter.

AS we advised this Court in our letter of July 1,

1998 (see note 5, supra), ratification of Montreal

Protocol No. 4 by the United States could sub-

stantially affect the Court’s consideration of this

case. First, where ratification has made the Protocol

applicable to a given case (see, e.g., Montreal Protocol

No. 4, Art. XIV), the Protocol supersedes Article

24(2)’s original introductory clause, which is the

29

proper focus of this dispute. Ratification of Montreal

Protocol No. 4 by the United States would thus di-

minish the continuing legal significance of any reso-

lution of this dispute.” At the same time, such ratifi-

cation, combined with the Protocol’s recent entry

into force elsewhere, might itself be relevant to a

proper interpretation of Article 24’s original text.

See pp. 26-28, supra; see generally Zicherman, 516

U.S. at 226 (affirming importance of “the postratifica-

tion understanding of the contracting parties” in

treaty interpretation); cf. Floyd, 499 U.S. at 550

(“because the United States Senate has not ratified

the [Guatemala City] Protocol we should not consider

it to be dispositive”); Saks, 470 U.S. at 403 (because

the Montreal and Guatemala City Protocols “have yet

to be ratified by the Senate,” they “do not govern the

disposition of this case”). We will keep the Court ap-

prised of further developments with respect to the

ratification of Montreal Protocol No. 4.”

® Whether the Protocol has retroactive application is an

issue that this Court would not normally address in the first in-

stance.

21 Airport security searches like the one at issue here are

subject to a detailed federal regulatory scheme administered by

the Department of Transportation. See 49 U.S.C. 44901 et seq.;

14 C.F.R. Pts. 107, 108. Because this Court granted certiorari

to review only the question of the Warsaw Convention’s exclu-

sivity, there is no occasion to address whether that regulatory

scheme preempts state law tort actions arising from such secu-

rity searches.

30

CONCLUSION

The judgment of the court of appeals should be

reversed insofar as it holds that respondent's per-

sonal injury claim may proceed under state law even

if she cannot satisfy the conditions for liability under

the Convention.

Respectfully submitted.

DAVID R. ANDREWS

Legal Adviser

DAVID S. NEWMAN

Attorney-Adviser

Department of State

NANCY E. MCFADDEN

General Counsel

PAUL M. GEIER

Assistant General Counsel

DALE C,. ANDREWS

Deputy Assistant General

Counsel

Department of

Transportation

JULY 199%

SETH P. WAXMAN

Solicitor General

FRANK W. HUNGER

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

JONATHAN E, NUECHTERLEIN

Assistant to the Solicitor

General

ROBERT S. GREENSPAN

ALISA B. KLEIN

DAVID B. SALMONS

Attorneys