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

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No. 97-475

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

Ext AL ISRAEL AIRLINES, LTD.,

. Petitioner,

Tsut YUAN TSENG,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

AND BRIEF OF AIR TRANSPORT ASSOCIATION

OF AMERICA AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

Of Counsel: WARREN L. DEAN, JR.

ROBERT P. WARREN Counsel of Record

Davip A. BERG JOSEPH O. CLICK

AIR TRANSPORT ASSOCIATION PATRICIA N. SNYDER

OF AMERICA HEATHER L. MILLER

1301 Pennsylvania Ave., N.W. Dyer ELuUs & JOSEPH

Suite 1100 600 New Hampshire Ave., N.W.

Washington, D.C. 20004-1707 Washington, D.C. 20037

(202) 626-4000 (202) 944-3000

Attorneys for Amicus Curiae

Air Transport Association

of America

WILSON - Eres PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001

;

In THE

Supreme Court of the United States

OCTOBER TERM, 1997

No. 97-475

Ev AL ISRAEL AIRLINES, LTD.,

Petitioner,

Vv.

Tsu!l YUAN TSENG,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

The Air Transport Association of America (ATA) re-

spectfully moves to file the attached brief amicus curiae in

support of the petition to reverse the judgment of the U.S.

Court of Appeals for the Second Circuit. Counsel for

Petitioner has given their consent for the ATA to file this

brief, and verification of that consent has been filed with

the Court. The consent of Counsel for Respondent was

requested and refused despite being granted at the petition

stage. This Court previously granted the ATA’s motion

for leave to file a Brief as amicus curiae. 118 S. Ct. 1793

(May 18, 1998).

The interest of the ATA in this case stems from the fact

that its member airlines consider this case to present issues

of national and international importance. As set forth

more fully in the attached brief, the decision below under-

mines the continued viability of the Warsaw Convention

and profoundly affects the ability of the ATA’s members

to implement security measures that assure the safety of

50 million passengers carried annually on international

flights by the ATA member airlines.

Respectfully submitted,

Of Counsel: WARREN L. DEAN, JR.

ROBERT P. WARREN Counsel of Record

Davip A. BERG Josern O. CLICK

AIR TRANSPORT ASSOCIATION PATRICIA N. SNYDER

OF AMERICA HEATHER L. MILLER

1301 Pennsylvania Ave., N.W.

Suite 1100

Washington, D.C. 20004-1707

(202) 626-4000

Dated: July 16, 1998

Dyer ELLs & JOSEPH

600 New Hampshire Ave., N.W.

Washington, D.C. 20037

(202) 944-3000

Attorneys for Amicus Curiae

Air Transport Association

of America

QUESTION PRESENTED

Whether the Warsaw Convention, a treaty of the United

States, exclusively governs and precludes any recovery for

a passenger's injuries sustained in the course of “inter-

national transportation” if the injuries were not caused by

an “accident” within the meaning of Article 17 of the

Convention?

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .......

INTEREST OF THE AIR TRANSPORT ASSOCIA-

gE ee

SUMMARY OF ARGUMENT 0. ~~

ED ecctntnicnpaienniniinny: oreranewe aliiniatnens|

IT.

ITT.

THE HOLDING OF THE COURT OF AP-

PEALS THAT THE WARSAW CONVEN-

TION’S RULES ARE NOT EXCLUSIVE

UNDERMINES THE UNIFORM LIABILITY

REGIME OF THE CONVENTION

SUBSEQUENT AMENDMENTS TO THE

CONVENTION CONFIRM THE EXCLUSIV-

ITY OF ITS RULES ....................

THE AIRLINES AND THE UNITED STATES

HAVE IMPLEMENTED THE CONVEN-

TION’S RULES IN A MANNER CONSISTENT

WITH THEIR EXCLUSIVITY ..

A. Air Carrier Tariffs Filed with the Depart-

ment of Transportation Reflect the Exclusiv-

ity of the Convention's Rules ..

B. Recent Waivers of the Convention’s Passen-

ger Liability Limits Were Achieved on the

Basis of the Industry’s Expectations That the

Convention’s Rules Are Exclusive

C. The Court of Appeals’ Decision, If Not Re-

versed, Will Have Deleterious Effects on

a ee)

TABLE OF CONTENTS—Continued

IV. PRESERVING THE CONVENTION'S EX-

CLUSIVITY WILL PROMOTE THE SECUR-

ITY OF AIRLINES AND PASSENGERS.

V. THE COURT BELOW BASED ITS DECI-

SION ON A FUNDAMENTAL MISCON-

STRUCTION OF THE CONVENTION ........

VI. THE U.K. HOUSE OF LORDS HAS ALSO

FOUND THE CONVENTION TO BE EXCLU-

Ee sninnnanens peat

Page

TABLE OF AUTHORITIES

CASES Page

Abnett v. British Airways, 1 All E.R. 198 (HLL.

Ue 5, 23

In re Air Disaster at Lockerbie, Scotland, 87 F.3d

804 (2d Cir. 1994), cert. denied, 513 U.S. 1126

(1995) .. 21

In ve Air Disaster at Lockerbie, ‘Scotland, 928 F.2d

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

(1991) .. increas 20

Air France * v. ;. Sake, ‘470 US. 392 (1985) oy vous passim

British Airways v. Mohamed, No. 95-96736, Judg-

ment (CA Paris, 1996) . 24

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

Cir. 1975), cert. denied, 429 U.S. 890 (1976) 20

Deutsche Lufthansa Aktiengesellschaft v. C.A.B.,

479 F.2d 912 (D.C. Cir. 1973) . 13

Eastern Airlines, Inc. v. Floyd, 499 ‘us. 680

(1991) .. 8, 23, 24

Emery Air Freight Corp. v. ». Nerine Nurseries Ltd.

I 23

Factor v. Laubenheimer, 290 U.S. 276 (1933)... 20

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

(11th Cir. 1989), cert. granted, 496 U.S. 904

(1990), rev'd on other grounds, 499 U.S. 530

(1991)... RN Ee Oe SS SERIE eet ee PS Cee ee 10

Keogh v. Chicago & Northwestern R. Co., 260 U.S.

156 (1922) _.......... 15

In re Korean Air Lines Disaster, 829 F.2d 1171

a I i ti 22

In re Korean Air Lines Disaster, 664 F. Supp. 1463

(D.D.C. 1985) . 11

Louisville & Nashville R. Co. t v. . Maxwell, 237 US.

lg EI RS nts ie a ee 16

Lowden v. Simonds-Shields-Lonsdale Grain Co.,

ik FEES RENIN Ce rare 15

Maislin Industries v. Primary Steel, 497 U.S. 116

RE IR EE ie Ea ER Ie SAREE EEE 15

Margrave v. British Airways, 643 F. Supp. 510

(S.D.N.Y. 1986) ... 20

North America Phillips: “Corp. v. Emery Air

Freight, 579 F.2d 229 (2d Cir. 1978) . nest 16

TABLE OF AUTHORITIES—Continued

Page

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

PRR ES Se EE DR 20

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

nied, 434 U.S. 922 (1977) .. — 21

St. Paul Insurance Co. v. Venesuclen International

Airways, Inc., 807 F.2d 1543 (11th Cir. 1987). 15

Salerno v. Pan American World Airways, Inc., 606

F. Supp. 656 (S.D.N.Y. 1985) ... 20

Swaminathan v. Swiss Air Transport Co., 962 F. 2d

BD: GR Gi, FD cireeticticierntierctcasctinistinennmisicanns 11

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

1401 (2d Cir. 1969) .. 16

Trans World Airlines, Ine. v. ). Prenklin Mint Corp.,

POG GG OF a es _ 20, 22

United States v. Stuart, 489 U.S. 353 (1989)....... 29

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

SG. SF a ae 6

RULE

Supreme Court Rule 37.6 ..........2-- sind 1

STATUTES

Aviation Programs—Pricing

49 U.S.C. § 41504(a) (1) (A) (1998) .............. 12

49 U.S.C. § 41510 (1998) 0 16

Air Commerce and Safety—Security

49 U.S.C. §§ 44901-44915 (1998)... 19

49 U.S.C. § 44907 (a) (2) (C) (1998)... 20

International Security Development and Corpora-

tion Act

Pub. L. No. 99-83, § 551(a), 99 Stat. 190, 222-

eee 20

REGULATIONS

Tl4, 8 ) £ __ 19

14C.F.R. Part 108 (1998) ........................ niebihaatane 19

14C.F.R. §§ 108.5, 108.7(a) (4) (1998) _.............. 19

14. C.F.R. Part 109 (1998) 2. cceeceeeennenenenenns 19

vii

TABLE OF AUTHORITIES—Continued

14. C.F.R. Part 129 (1998) 000 ec ceeeee

14 C.F.R. Part 208 (1998) 00 ecceecceeees

14 C.F.R. § 208.4 (1998) occ ccceeeeeeeeeeeen

14 C.F.R. § 221.88(j) (1998) 00.

LEGISLATIVE AND ADMINISTRATIVE

MATERIALS

144 Cong. Rec. D685 ee ed. June 23, sisted ahs

S. Rep. No. 97-45 (1981) .. siBleodies a

S. Rep. No. 98-1 (1983) 000. Pete ) SNOT

S. Rep. No. 101-21 (1990)

TREATIES AND AGREEMENTS

Additional Protocol No. 3 to Amend the Conven-

tion for the Unification of Certain Rules Relat-

ing to International Carriage by Air, Signed at

Warsaw on 12 October 1929 as Amended by the

Protocols Done at The Hague on 28 September

1955 and at Guatemala City on 8 March 1971,

IN Gita, BPI cccecrecetsvecsctenensevnsecenentaseennesensems

Agreement Relating to Liability Limitations of the

Warsaw Convention and The Hague Protocol,

CAB Agreement 18900, 31 Fed. Reg. 7302

(1966) (approved by Civil Aeronautics Board

Order No. E-23680, May 13, 1966) ..

Air Services Agreement Between the Government

of the United States of America and the Gov-

ernment of the United Kingdom of Great

Britain and Northern Ireland, July 23, 1977, 28

U.S.T. 5867, TIAS 7537 . “

Convention for the Suppression of Unlawful Acts

Against the Safety of Civil Aviation, September

23, 1971, 24 U.S.T. 564,10 LL.M. 1151...

Convention for the Suppression of Unlawful Seiz-

ure of Aircraft, December 16, 1970, 22 U.S.'.

1641, 10 LL.M. 138 .

Convention for the Unification of ‘Certain ‘Rules

Relating to International Transportation by Air,

October 12, 1929, 49 Stat. 3000, 137 L.N.T-.S.

11 (1934), biouitisinia in 49 U.S.C. heme note

(1994) .... edhe nla iat n

passim

viii

TABLE OF AUTHORITIES—Continued

Convention on International Civil Aviation, De-

cember 7, 1944, 61 Stat. 1180, 15 U.N.T.S. 295...

Convention on Offenses and Certain Other Acts

Committed on Board Aircraft, September 24,

1963, 20 U.S.T. 2941, 704 U.N.T.S. 219 00...

Montreal Protocol No. 4 to Amend the Convention

for the Unification of Certain Rules Relating to

International Carriage by Air, Signed at Warsaw

on 12 October 1929 as Amended by the Protocol

Done at The Hague on 28 September 1955, Sep-

CO ID ihn ccc i tee.

Protocol for the Suppression of Unlawful Acts of

Violence at Airports Serving International Civil

Aviation, February 24, 1988, T.I.A.S. 7570, 27

i RR EA A eS eRe Se

Protocol to Amend the Convention for the Unifica-

tion of Certain Rules Relating to Irternational

Carriage by Air, Signed at Warsaw on 12 Octo-

ver 1929 as Amended by the Protocol Done at

The Hague on 28 September 1955, March 8,

RRA RRR STG iy ND No Ria Nr Macias

MISCELLANEOUS

Department of Transportation Order 97-1-2, 1997

DOT Av. LEXIS 2 (D.O.T. Jan. 8, 1997) ........ 13,

Department of Transportation Order 96-10-7, 1996

DOT Av. LEXIS 640 (D.O.T. Oct. 3, 1996)...

ICAO, INTERNATIONAL CONFERENCE ON AIR LAW,

MONTREAL, ICAO Doc. 9154-LC/174-1 (1975)...

ICAO, INTERNATIONAL CONFERENCE ON AIR LAW,

GUATEMALA CiTy, ICAO Doc. 9040-LC/167-1

PEEL Gs SRE Soak See ME a oe SN

ICAO, International Standards and Recommended

Practices, Security: Safeguarding International

Civil Aviation Against Acts of Unlawful Inter-

ference, Annex 17 to the Chicago Convention

ne ae Tn

International Passenger Rules and Fares Tariff

No. DL-1, NTA(A) No. 304, 1 C.A.B. No. 459,

Rules 55(B) (1) and (C), effective Feb. 6, 1997..

Page

12, 18

9,11

15, 16

TABLE OF AUTHORITIES—Continued

Page

R. Mankewitz, The 1971 Protocol of Guatemala

City to Further Amend the 1929 Warsaw Con-

vention, 38 J. Ain L. Com. 519 (1972) —.............. 8

NICOLAS M. MATTE, TREATISE ON AIR-AERONAU-

le SR EL le Se 18

8 ae 34

IN THE

Supreme Court of the United States

OcTOBER TERM, 1997

No. 97-475

Ev AL ISRAEL AIRLINES, LTD.,

Petitioner,

Vv.

Tsu! YUAN TSENG,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF OF THE AIR TRANSPORT ASSOCIATION

OF AMERICA AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

The Air Transport Association of America (ATA), as

amicus curiae, supports the Petition of El Al Israel Air-

lines, Ltd. (El Al) to reverse the judgment of the U‘S.

Court of Appeals for the Second Circuit."

INTEREST OF THE AIR TRANSPORT

ASSOCIATION OF AMERICA

The ATA is an association of 23 U.S. and five foreign

airlines.» The ATA’s U.S. members operate within the

1 No party to this case had any role in drafting this brief or

provided any monetary support for its preparation or filing. Su-

preme Court Rule 37.6.

2The ATA’s members are Airborne Express, Alaska Airlines,

Aloha Airlines, America West Airlines, American Airlines, Ameri-

United States and in the U.S. foreign commerce. Its for-

eign members also participate in the U.S. foreign com-

merce and are subject to suit in the United States. The

ATA’s principal purpose is to support its member airlines

by promoting airline sefety and advocating common indus-

try positions. Since its inception in 1936, the ATA has

been involved in the development of international law

governing international air transportation.

The decision below threatens to upset the established

expectations of airlines and their governments with respect

to the uniformity and exclusivity of the international air

transportation liability regime.

First, the ATA is concerned that the decision below

puts the primacy of the Warsaw Convention’s liability

regime at risk by undermining the realization of its prin-

cipal objective—uniformity. The decision threatens to sub-

ject passengers and airlines to different remedies and

standards of liability, depending on the country or the

local jurisdiction in which the suit is filed. Further, the

decision contradicts the uniform implementation of the

Convention's rules by airlines and their governments.

Recently, the world’s airlines, with strong U.S. government

support, have achieved consensus to waive the Conven-

tion’s passenger liability limits and certain of its defenses.

ATA member airlines have already implemented waivers

of passenger liability limits in their tariffs governing inter-

national air services. The decision below threatens the

further implementation by foreign airlines of this impor-

tant consensus.

can Trans Air, Atlas Air, Continental Airlines, Delta Air Lines,

DHL Airways, Emery Worldwide, Evergreen International, Fed-

eral Express, Hawaiian Airlines, Midwest Express, Northwest Air-

lines, Polar Air Cargo, Reeve Aleutian Airways, Southwest Air-

lines, Trans World Airlines, United Airlines, United Parcel Service.

and US Airways. The ATA’s technical, foreign-flazg members are

Aeromexico, Air Canada, Canadian Airlines International. KLM-

Royal Dutch Airlines, and Mexicana Airlines.

Finally, by exposing airlines to liability under local law

for applying statutorily required security procedures, the

court’s holding could have a chilling effect on airlines and

their personnel in executing their security responsibilities.

This would impair the ability of the United States to pro-

tect the safety and security of its citizens.

STATEMENT

Respondent seeks damages under New York state law

for emotional injuries allegedly suffered during a routine

airline security search conducted in the United States pur-

suant to El Afs security program. Respondent suffered no

physical harm. E] Al conducted the search in accordance

with a security program to screen all passengers and bag-

gage before boarding or loading.

The district court concluded that Respondent's injuries

were caused by an “accident” within the meaning of Arti-

cle 17 of the Warsaw Convention.* The district court

found, however, that the injuries were not “bodily injuries”

cognizable under Article 17 and that Article 24 of the

Convention * precluded state law claims for injuries not

compensable under Article 17.

3 Convention for the Unification of Certain Rules Relating to

International Transportation by Air, October 12, 1929, 49 Stat.

3000, 137 L.N.T.S. 11 (1984), reprinted in 49 U.S.C. § 40105 note

(1994). Article 17 of the Convention states:

The carrier shall be liable for damage sustained in the event

of the death or wounding of a passenger or any other hodilw

injury suffered by a passenger, if the accident which caused

the damage so sustained took place on board the aircraft or

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

embarking.

+ Article 24 of the Convention states:

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

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

conditions and limits set out in this convention.

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

preceding paragraph shall also apply, without prejudice to the

The court of appeals reversed, holding that a security

search—being a common incident of international air

travel, and not an “unexpected” or “unusual” event—is

not an “accident” for purposes of the Warsaw Conven-

tion. Finding the conduct not “covered” by Article 17,

the court of appeals held that Article 24 did not preempt

the personal injury claims and that Respondent could

pursue causes of action under state law unfettered by the

Convention's liability limitations.

SUMMARY OF ARGUMENT

The parties to the Warsaw Convention intended to

establish and maintain a uniform set of rules governing the

liability of the carrier to passengers traveling in interna-

tional air transportation. Nothing in this Convention's long

history supports a different interpretation. The decision

below directly disrupts the international airline industry's

and the aeronautical avthorities of governments’ expecta-

tions that the Convention provides the exclusive means of

passenger redress for injuries within its scope.

Subsequent amendments to the Convention confirm its

objective of establishing an exclusive and uniform set of

carrier liability rules for passengers in international air

transportation. The Convention itself, which allows parties

adhering to different versions of this treaty to nonetheless

maintain a treaty relationship, underscores the need for

consistency in its interpretation except where the parties

clearly intend to effect a change in their obligations. In

this case, it is inconceivable that the parties would seek to

alter something so fundamental as the scope of the Con-

vention’s uniformity by a mere technical clarification to

the language of Article 24.

questions as to who are the persons who have the right to bring

suit and what are their respective rights.

The holding of the court below contradicts the carriers’

own rules implementing the Convention, as filed with the

Department of Transportation (DOT) in tariffs. It also

jeopardizes the consensus recently achieved by the major

international air carriers to waive the Convention’s pas-

senger liability limits and certain defenses.

Declaring certain causes of action for injuries sustained

in international air transportation to be outside the Con-

vention’s coverage would have serious adverse effects. It

would disrupt the Convention's uniform liability regime

and would interfere with airline activity undertaken pur-

suant to other international obligations governing interna-

tional air transportation security—obligations negotiated

with the shared expectation of the Convention's exclusivity.

The court of appeals’ holding that the Warsaw Conven-

tion does not apply to certain passenger injury claims sus-

tained during international air transportation is based

upon the fundamentaliy erroneous premise that a Conven-

tion establishing exclusive liability rules cannot be read to

preclude liability altogether in certain cases.

Finally, the court of appeals’ decision directly conflicts

with the decision of the U.K. House of Lords of the United

Kingdom in Abnett v. British Airways.’ The decision of a

sister signatory to the Convention is entitled to consider-

able weight.®

51 All E.R. 193 (H.L. 1996) (U.K.) ; Pet. App. 34a-66a.

6 Air France v. Saks, 470 U.S. 392, 404 (1985).

ARGUMENT

I. THE HOLDING OF THE COURT OF APPEALS

THAT THE WARSAW CONVENTION'S RULES

ARE NOT EXCLUSIVE UNDERMINES THE UNI-

FORM LIABILITY REGIME OF THE CONVEN-

TION.

In this case, the court of appeals held that the Warsaw

Convention does not provide the exclusive remedy for

personal injuries sustained in the course of international

air transportation. Thus, according to the court of ap-

peals, plaintiffs who allegedly suffer personal injuries, not

involving physical harm, resulting from an airline's secu-

rity search—a search mandated by both federal and inter-

national law—are free to sue under the law of any state

unfettered by the liability rules agreed to by the United

States in the Warsaw Convention.

The court of appeals’ holding does substantial damage

to the Convention and the uniform liability regime estab-

lished under it. A principal purpose of the Warsaw Conven-

tion is to establish a system for “regulating in a uniform

manner the conditions of international transportation by

air in respect of . . . the liability of the carrier.” 7 Accord-

ingly, Article 1(1), which broadly defines the Conven-

tion’s scope, provides that “[t]his Convention shall apply

to all international transportation of persons, baggage, or

goods performed by aircraft for hire.”* In other words,

the Convention's liability rules are exclusive for claims

arising from “international air transportation” as defined

in the Convention.

The court of appeals’ decision ignores these fundamental

principles. As set forth in the Brief of the United States

as amicus curiae, the governing text, drafting history, and

7Warsaw Convention, Preamble; see Zicherman v. Korean Air

Lines Co., 516 U.S. 217, 116 S. Ct. 629, 636 (1996).

$8 Warsaw Convention, Article 1(1) (emphasis added)

overall structure of the Convention confirm the exclusivity

of the Convention.® The ATA will not address those

issues further in this brief. Rather, because subsequent

conduct of the Convention's parties and international air-

lines is relevant to the Convention’s proper interpretation,

the ATA will here set forth the developments following

its ratification that further demonstrate its exclusivity.

This brief will also discuss the serious practical implica-

tions that the court of appeals’ decision will have on the

Convention's liability regime, airlines, and the safety and

security of airline passengers.

Il. SUBSEQUENT AMENDMENTS TO THE CONVEN-

TION CONFIRM THE EXCLUSIVITY OF ITS

RULES.

In holding that the Convention does not provide the

exclusive remedy for personal injuries sustained during

international air transportation, the court of appeals fo-

cused on the language of Article 24, which provides “[i}n

cases covered by Article 17” an action for damages

based on personal injury “can only be brought subject to

the conditions and limits set out in this convention.”

The court then reasoned that for a person to recover

under Article 17, his or her personal injuries resulting

from an “accident” must lead to bodily injury: any injuries

that are neither bodily injuries nor caused by an “accident”

are not “covered” by Article 17.%% The court then con-

cluded that because such injuries are not “covered” by

Article 17, Article 24 does not apply, and a person sus-

® Brief for the United States as Amicus Curiae on Petition for

Writ of Certiorari to the U.S. Court of Appeals for the Second

Cireuit at 13-19 (April 1998).

10 Warsaw Convention, Article 24(2).

11 Jd., Article 24(1).

12 Pet. App. 15a-16a.

taining such injuries is free to seek whatever remedies are

provided by municipal law.”

The Convention’s amendments show that the court of

appeals’ reading of Article 24’s exclusivity provisions does

not conform with the “shared expectations of the contract-

ing parties.” '* The 1971 Guatemala City Protocol to the

Convention proposed to amend Articles 17, 22, 24, and

25 of the Convention to make the liability of the carrier

absolute and its limits unbreakable.’ Of particular rele-

vance here, this Protocol proposed to amend the coverage

of Article 24’s exclusivity provision from cases “covered

by Article 17” to provide for exclusivity with respect to

“any action for damages, however founded” arising from

“the carriage of passengers and baggage.” * This change

in language, however, was not intended as a substantive

13 Jd.

14 Air France v. Saks, 470 U.S. at 399.

15 Protocol to Amend the Convention for the Unification of Cer-

tain Rules Relating to International Carriage by Air, Signed at

Warsaw on 12 October 1929 as Amended by the Protocol Done at

the Hague on 28 September 1955, March 8, 1971. See R. Mankewit-,

The 1971 Protocol of Guatemala City to Further Amend the 1929

Warsaw Convention, 38 J. Am L. Com. 519 (1972). The ATA

recognizes that this Court has cautioned against attaching signifi-

cance to the Guatemala City Protocol. Eastern Airlines, Inc. v.

Floyd, 499 U.S. 530, 5562 (1991). As explained infra nn.24-26 and

accompanying text, however, Montreal Protocol No. 4’s recent entry

into force makes it relevant.

16 Article IX of the Guatemala City Protocol would have amended

Article 24(2) of the Convention to read:

In the carriage of passengers and baggage any action for

damages, however founded, whether under this convention or

in contract or in tort or otherwise, can only be brought subject

to the conditions and limits of liability set out in this Conven-

tion without prejudice to the question as to who are the per-

sons who have the right to bring suit and what are their

respective rights ....

change in the Convention’s coverage, but rather as a re-

organization of Article 24’s paragraphs."

Although it never entered into force,* the Guatemala

City Protocol has been incorporated into Montreal Pro-

tocols Nos. 3 and 4.”° In particular, Montreal Protocol

No. 3 (which deals primarily with passenger liability)

would have amended Article 24, using the identical lan-

guage contained in Article [IX of the Guatemala City

Protocol. Montreal Protocol No. 4 (which deals pri-

marily with cargo liability) nonetheless amends the lan-

guage of Article 24 with language derived from the Guate-

mala City Protocol. As with the Guatemala City Protocol,

therg.4s mo suggestion in the negotiating history with

‘Tespect to the Montreal Protocols that this was intended to

effect a substantive change in the Convention’s exclusivity.

Indeed, the negotiating history of Montreal Protocol No 4

17 ICAO, INTERNATIONAL CONFERENCE ON AIR LAW, GUATEMALA

Crry, ICAO Doc. 9040-LC/167-1, at 301 (1972).

18 For the Protocol to enter into force and become binding, it

must be approved by 30 signatories to the Convention, which rep-

resent at least 40 percent of the total international scheduled air

traffic. See Article XX. The Protocol »as never been transmitted

to the United States Senate for its advice and consent to ratifica-

tion. Its status in the United States and the international com-

munity is largely irrelevant in light of Montreal Protocol Nos. 3

and 4.

19 Additional Protocol No. 3 to Amend the Convention for the

Unification of Certain Rules Relating to International Carriage by

Air, Signed at Warsaw on 12 October 1929 as Amended by the

Protocols Done at The Hague on 28 September 1955 and at Guate-

mala City on 8 March 1971, Art. VII, September 25, 1975.

20 Montreal Protocol No. 4 to Amend the Convention for the

Unification of Certain Rules Relating to International Carriage by

Air, Signed at Warsaw on 12 October 1929 as Amended by the

Protocol Done at The Hague on 28 September 1955, September 25,

1975.

suggests that this change was uncontroversial since it was

approved unanimously.”

In 1977. the Montreal Protocols were submitted to the

Senate for advice and consent to ratification. They were

favorably reported to the Senate by the Senate Foreign

Relations Committee on three separate occasions.** In so

reporting the committee confirmed that, with respect to

the Convention’s exclusivity, the amendment to Article

24’s language was intended to clarify the existing provi-

sion, stating that Article 24 “makes clear that actions for

damages whether founded upon the ‘Convention, or in

contract or tort or otherwise’ can only be brought subject

to the conditions and limits set out in the Convention.” ~

On June 14, 1998, Montreal Protocol No. 4 entered

into force for the 30 countries that had ratified it.** For

those countries Article 24, as it relates to passenger

claims, reads as follows:

211CAO, INTERNATIONAL CONFERENCE ON AIR LAW, MONTREAL,

ICAO Doe. 9154-LC/174-1, at 167 (1975).

22 The Senate's failure to give its advice and consent to ratifica-

tion of both Protocols was attributable primarily to “a reluctance

to accept any damage limitations [on passenger claims} at all.”

Floyd v. Eastern Airlines, Inc., 872 F.2d 1462, 1475 n.19 (11th Cir.

1989), cert. granted, 496 U.S. 904 (1990), rev'd on other grounds,

499 U.S. 580 (1991); see also S. Rep. No. 101-21, at 21 ( Minority

views of Senators Biden and Simon). On June 23, 1998, the Senate

Foreign Relations Committee voted unanimously to report Montreal

Protocol No. 4 favorably for Senate advice and consent to ratifica-

tion. See 144 Conc. Rec. D685 (daily ed. June 23, 1998). The

committee has not yet issued a report to accompany its recommen-

dation. The Senate is expected to direct the Secretary of the Senate

to return Montreal Additional Protocol No. 3 to the President.

23S. Rep. No. 97-45, at 12 (1981); S. Rep. No. 98-1, Executive

B, at 17 (1983); S. Rep. No. 101-21, at 15 (1990).

24 The treaty entered into force 30 days after the thirtieth signa-

tory deposited its instrument of ratification with the Polish govern-

ment under Article XVIII.

rr =

ne cemiegy ot pamengeee end begga, ety estinn

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.

Notwithstanding the differences in the texts of Article 24,

the United States remains in a treaty relationship under

the Convention with all 30 countries party to Montreal

Protocol No. 4.*° A holding that the changes to Article 24

are more than a drafting clarification would result in

vastly different liability rules being applied to passengers

on a single flight: the rules depending on the country in

which an action for damages is filed. Such a result would

eviscerate the Convention’s uniformity and therefore should

be embraced only where the parties clearly intended such

a result. That is not the case here.

Ill. THE AIRLINES AND THE UNITED STATES

HAVE IMPLEMENTED THE CONVENTION’S

RULES IN A MANNER CONSISTENT WITH

THEIR EXCLUSIVITY.

A. Air Carrier Tariffs Filed with the Department of

Transportation Reflect the Exclusivity of the Con-

vention’s Rules.

Under the terms of the Chicago Convention, scheduled

international air transport services require the mutual con-

25 Once the United States ratifies Montreal Protocol No. 4, the

amended Article 24 will govern actions in the United States arising

from the injury to, or the death of, a passenger in international

carriage, provided that the carriage involves a place of departure

and destination within the territory of a-party to the amended

Convention. See Montreal Protocol No. 4, Article XIV. Hence. a

round trip ticket originating in the United States will be governed

by the amended Article 24 after Montreal Protocol No. 4 is ratified

by the United States. See, e.g., Swaminathan &. Swiss Air Trans-

port Co., 962 F.2d 387, 389 (5th Cir. 1992).

26 Jn re Korean Air Lines Disaster, 664 F. Supp. 1463, 1469

(D.D.C. 1985).

sent of the nations between whose territories passengers

are carried.*” For this reason among others, international

air transportation is subject to pervasive economic and

safety regulations, the terms of which are governed by

bilateral air services agreements.*8

U.S. law authorizes DOT to require that tariffs contain

the contract of carriage." DOT regulations require that,

unless a carrier elects to assume unlimited liability, its

tariffs must contain a statement as to the applicability and

effect of the Warsaw Convention.”

Carrier tariffs typically contain two sets of liability rules:

one for international transportation as defined in Article

1(2) of the Warsaw Convention, and another for inter-

national transportation that does not fit that definition.®

With respect to international transportation as defined in

the Convention, DOT requires carriers serving the United

States to include a waiver of the Convention’s $10,000

Passenger liability limit, by becoming a party either to

(a) the 1966 Montreal Agreement, under which the car-

rier agrees to waive the limit and the defense of non-

negligence up to $75,000, or (b) one of the 1996 inter-

27 Convention on International Civil Aviation, December 7, 1944,

art. 6, 61 Stat. 1180, 1182, 15 U.N.T.S. 295.

28 See, e.g., Air Services Agreement Between the Government of

the United States of America and the Government of the United

Kingdom of Great Britain and Northern Ireland, July 23, 1977,

28 U.S.T. 5367, TIAS 7537.

29 49 U.S.C. § 41504(a)(1)(A).

30 14 C.F.R. § 221.38(j).

31 An example of international air transportation that does not

fit within the Convention's definition of that term is transportation

between countries that are not party to the Convention.

32 Agreement Relating to Liability Limitations of the Warsaw

Convention and The Hague Protocol, CAB Agreement 18900, 31

Fed. Reg. 7302 (1966) (approved by Civil Aeronautics Board

(CAB) Order No. E-23680, May 13, 1966). See, e.g. 14 C.F.R.

Part 203.

carrier agreements * under which the carrier agrees to

waive the liability limit altogether, while retaining the

defense of non-negligence with respect to that portion of

the claim that does not exceed 100,000 Special Drawing

Rights (SDRs).*

The 1966 Montreal Agreement, which has been in-

cluded in carriers’ tariffs for over 30 years, is predicated

on the Convention's exclusivity. The Montreal Agreement

(which was approved by the CAB) specifically states that

it is to apply “to all international transportation by the

Carrier as defined in the said Convention.” * Pursuant

to the CAB’s rulemaking authority,** the terms of this

agreement were incorporated into the regulations since

they were consistent with the Warsaw Convention. The

regulations require carriers to file their adherence to the

Montreal Agreement as part of their tariffs.57

Pursuant to long-standing industry practice, U.S. and for-

eign carriers harmonize their conditions of Carriage, parti-

cularly with regard to liability, to promote interlining and

other joint service arrangements. Conditions of Carriage

governing liability are based on Recommended Practice

1724 of the International Air Transport Association

33 These new agreements are known as the Intercarrier Agree-

ment on Passenger Liability (IIA), Agreement on Measures to

Implement the IATA Intercarrier (MIA), and the U.S.-cearrier

adopted “Provisions Implementing the IATA Intercarrier Agree-

ment to be Included in Conditions of Carriage and Tariffs” (IPA).

See Department of Transportation Order 97-1-2, 1997 DOT Av.

LEXIS 2 (D.0.T. Jan. 8, 1997). See infra pp. 16-17.

34 Special Drawing Rights of the International Monetary Fund

are based on exchange rates for U.S., German, British, French, and

Japanese currencies. On July 6, one SDR equaled about U.S. $1.33.

WALL St. J., July 7, 1998, at C25.

35 See n.32.

36 See, e.g., Deutsche Lufthansa Aktiengesellschaft v. C.A.B., 479

F.2d 912 (D.C. Cir. 1973).

37 14 C.F.R. § 203.4.

(IATA). Section 16.1 of that resolution governs inter-

national carriage, and assumes the exclusivity of the Con-

vention’s liability regime by providing that such carriage

“is subject to the rules and limitations relating to liability

established by the Convention unless such carriage is not

international carriage to which the Convention applies.”

In contrast, with respect to such extra-Convention carriage,

section 16.2 of IATA’s Recommended Practice 1724 pro-

vides that the_carrier shall be liable for damage to a

passenger “only if such damage has been caused by the

negligence of Carrier.” Under this provision, state negli-

gence law would apply.

ATA member airline tariffs generally incorporate the

IATA language. For example, Rule 55 of Delta Air Lines’

DOT-approved tariff provides:

(B) LAWS AND PROWISIONS APPLICABLE

(1) Warsaw Convention. The Carrier agrees in ac-

cordance with Article 22(1) of [the Warsaw

Convention] that, as to all international carriage

or transportation hereunder as defined in the

Convention:

(a) The Carrier shall not invoke the limitation

of liability in Article 22(1) of the Con-

vention as to any claim for recoverable

compensatory damages arising under Ar-

ticle 17 of the Convention.

(b) The Carrier shall not avail itself of any

defense under Article 20(1) of the Conven-

tion with respect to that portion of such

claim which does not exceed 100.000

[SDRs].

graph (a) and (b) hereof, the Carrier re-

serves all defenses available under the Con-

vention to such claims. With respect to

third parties, the Carrier reserves all rights

of recourse against any other person, in-

cluding without limitation, rights of con-

tribution and indemnity.

(d) The Carrier agrees that subject to applica-

ble law recoverable compensatory damages

for such claims may be determined by refer-

ence to the law of the domicile or perma-

nent residence of the passenger.

Except as the Convention or other applicable

law may otherwise require:

(1) Carrier is not liable for any death, injury.

delay, loss, or other damage of whatsoever

nature . . . to passengers or unchecked bag-

gage arising out of or in connection with

carriage or other services performed by

carrier incidental] thereto. unless such dam-

age is caused by the negligence of carrie:

To the ATA’s knowledge, no tariff on file at DOT con-

templates that international air transportation as defined

by the Convention would be subject to any liability rules

other than those prescribed or permitted by the Conven-

tion. This is significant because once DOT has accepted

a carrier’s tariff and permitted it to go into effect, it has

the force of law.” This Court recently reaffirmed this

doctrine, known as the “filed rate doctrine” in Maislin

Industries v. Primary Steel A carrier may not deviate

38 International Passenger Rules and Fares Tariff No. DL-1.

tive Feb. 6, 1997 (footnotes omitted, emphasis added). Filed with

DOT permission granted in Order 97-1-2. The language of para-

graphs B(1)(a)-(d) is taken from the IPA (see supra n.32).

39 Lowden v. Simonds-Shields-Lonsdale Grain Co., 306 1S. 516.

529 (1939); St. Paul Ins. Co. v. Venezuelan Int'l Airways, Inc.

207 F.2d 1543, 1548 (11th Cir. 1987).

40 497 U.S. 116, 126 (1990); Keogh v. Chicago & Northwestern

R. Co., 260 U.S. 156, 163 (1922).

from a filed and effective tariff for foreign air transporta-

tion under any pretext.“ The filed rate doctrine applies

to air transportation.**

B. Recent Waivers of the Convention’s Passenger Lia-

bility Limits Were Achieved on the Basis of the

Industry’s Expectations That the Convention’s

Rules Are Exclusive.

In 1995 the world’s major international airlines, acting

under the auspices of the ATA and IATA, achieved a

consensus to waive the Convention’s passenger liability

limit and certain defenses.** This major milestone was

achieved by the aviation industry, U.S. and foreign govern-

ments, and groups representing the survivors of those who

have perished in airline accidents, working together to

develop intercarrier agreements. Many airlines have imple-

mented the intercarrier agreements by revising their tariffs

and conditions of carriage and terminating their participa-

tion in the 1966 Montreal Agreements. Other airlines are

taking comparable action. Under the new regime, U.S.

and foreign airlines agree to:

1) waive the Convention’s liability limit for death of,

or bodily injury to, passengers;

2) waive the defense of non-negligence for claims

up to 100,000 [SDRs]; and

3) preserve all other defenses and rights available

under the Convention, including any rights of

indemnity and contribution.

DOT has approved these intercarrier agreements.“

4149 U.S.C. § 41510 (1998); accord, Louisville & Nashville R. Co.

v. Maxwell, 237 U.S. 94 (1915).

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

(2d Cir. 1969); North Am. Phillips Corp. v. Emery Air Freight,

579 F.2d 229, 233 (2d Cir. 1978).

43 Article 22(1) of the Warsaw Convention authorizes airlines to

agree to additional liabilities by “special contract.”

44 See Order 97-1-2.

ee wt ee ea

The consensus among the airlines, both foreign- and

U.S.-flag, was achieved with the common understanding

that the Warsaw Convention provided the exclusive rem-

edy for all injury and death incurred during international

air transportation. Indeed, the new regime’s principal pur-

pose is to secure for U.S. citizens, including the victims of

terrorists’ attacks, the benefit of a uniform ard efficient

system providing prompt and adequate compensation for

injury or death in international air transportation regard-

less of the country in which the lawsuit is brought. In

general, the new regime’s benefits are substantially more

favorable than the remedies available under the law of

many nations.

C. The Court of Appeals’ Decision, If Not Reversed,

Will Have Deleterious Effects on Passengers.

As shown, nothing in the Convention, the intercarrier

agreements, the tariffs filed with DOT that rely on the

Convention, or any other source suggests that the Con-

vention contemplates application of any liability rules

other than those it prescribes. The decision below threat-

ens to take away the benefits conferred by the Convention,

the intercarrier agreements based thereon, and the tariffs

filed with DOT, for many passengers by undermining the

principle that the Warsaw Convention provides the exclu-

sive remedy.

First, airlines will likely see exposure to unlimited lia-

bility in the United States under federal and state laws.

without regard to the Convention, as a breach of the

understanding upon which the consensus to waive the

liability limits was based. If allowed to stand. the deci-

sion below could disrupt that consensus and derail the

ongoing implementation process.

Second, and equally disturbing, is the prospect that, if

the Convention is not exclusive, foreign courts will be

encouraged to declare particular claims to be outside the

Convention's scope, subjecting passengers ( including U.S.

citizens) to less favorable foreign law and depriving them

of these new protections. In this regard, the term “acci-

dent” has been interpreted broadly in identifying those

events for which compensation should be provided by air-

lines. The Second Circuit, however, narrowly—and in-

correctly—interpreted the term “accident” as referring

only to those “catastrophic” events that were “within the

contemplation of the drafters of the Convention.” Pet.

App. 20a. This precedent could lead to narrow definitions

of the term “accident” in cases brought in foreign courts

where national law is significantly less favorable to passen-

gers than the Convention’s rules.

IV. PRESERVING THE CONVENTION’S EXCLUSIV-

ITY WILL PROMOTE THE SECURITY OF AIR-

LINES AND PASSENGERS.

Security programs required of airlines by countries that

have signed the Warsaw Convention, including the United

States, involve a complex web of international agreements

that are grounded on the view that the Warsaw Conven-

tion provides the exclusive recourse for injured passengers.

Changing this exclusivity premise threatens to undermine

these security measures.

Security with respect to international air transportation

is pervasively governed by treaty. The overwhelming ma-

jority of the parties to the Warsaw Convention are also

party to the 1944 Chicago Convention, the main purpose

of which is to promote safety and order in international

Signatory countries must establish and maintain effective

measures to protect the security of international civil avia-

#5 Air France v. Saks, 470 U.S. at 405 (an accident “arises only

if a passenger’s injury is caused by an unexpected or unusual event

or happening that is external to the passenger’”’ ).

46 Chicago Convention, supra n.27, Preamble, Art. 44. Sce also

NICOLAS M. MATTE, TREATISE ON AIR-AERONAUTICAL LAW 187 (1981).

tion.” To further develop a uniform security system, other

international agreements to which the United States is

party impose on signatory countries requirements designed

to counter terrorist acts.“

Although the Chicago Convention and Annex 17 thereto

recognize airline security as a sovereign police function,

the United States has entrusted airlines with the bulk of

that responsibility. Under U.S. law, the Federal Aviation

Administrator sets screening standards and requires U.S.

and foreign airlines to establish and implement security

programs.”

The FAA has extensive regulations regarding the secu-

rity measures that must be taken by airports,” airlines,»

indirect air carriers (such as freight forwarders) that en-

gage indirectly in air transportation of property,®? and

foreign airlines operating to and from the United States.

Airline security programs must be filed with, and approved

by, the FAA.*

47 See ICAO, International Standards and Recommended Prae-

tices, Security: Safeguarding International Civil Aviation Against

Acts of Unlawful Interference, Annex 17 to the Chicago Convention

(6th ed. 1997).

#8 See, e.g., Convention on Offenses and Certain Other Acts Com-

mitted on Board Aircraft, September 24, 1963, 20 U.S.T. 2941, 704

U.N.T.S. 219; Convention for the Suppression of Unlawful! Seizure

of Aircraft, December 16, 1970, 22 U.S.T. 1641, 10 LL.M. 133;

Convention for the Suppression of Unlawful Acts Against the

Safety of Civil Aviation, September 23, 1971, 24 U.S.T. 564, 10

I.L.M. 1151; Protocol for the Suppression of Unlawful Acts of

Violence at Airports Serving Internationa! Civil Aviation, February

24, 1988, T.1.A.S. 7570, 27 I.L.M. 627.

# 49 U.S.C. §§ 44901-44915.

3 14 C.F.R. Part 107.

5114 C.F.R. Part 108.

52 14 C.F.R. Part 109.

53 14 C.F.R. Part 129.

3 14 C.F.R. §§ 108.5, 108.7(a) (4).

Congress has also enacted legislation to assure that

foreign airports provide safety and security to the flying

public. Under Section 551 of the International Security

Development and Cooperation Act,*> DOT periodically

assesses the effectiveness of security measures maintained

at foreign airports through which U.S. travelers pass, ap-

plying ICAO standards.*

The elaborate system of international rules governing

airline security upon which U.S. law is based was de-

veloped with a common understanding among nations that

the Convention would exclusively govern airline liability.

There has been no recognition that local tribunals can

regulate, or otherwise impose liability upon, airlines for

the normal implementation of these solemn obligations.

“The practice of treaty signatories counts as evidence of

the treaty’s proper interpretation, since their conduct gen-

erally evinces their understanding of the agreement they

signed.” *

The Second Circuit decision ignores this reliance and

thus fails to appreciate the effects of its decision on inter-

national airline security. It is now well established that

the Warsaw Convention governs an airline’s liability to

passengers for terrorist attacks, including hijacking.®

55 Pub. L. No. 99-83, § 551(a), 99 Stat. 190, 222-25 (1985).

56 49 U.S.C. § 44907(a)(2)(C).

57 United States v. Stuart, 489 U.S. 353, 369 (1989); see also

Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243,

259 (1984); Factor v. Laubenheimer, 290 U.S. 276, 294-295 (1933).

58 See Air France v. Saks, 470 U.S. at 405; see, e.g., Pflug +.

Egyptair Corp., 961 F.2d 26 (2d Cir. 1992); In re Air Disaster at

Lockerbie, Scotland, 928 F.2d 1267, 1269 (2d Cir.), cert. denied,

502 U.S. 920 (1991); Day v. Trans World Airlines, Inc., 528 F.2d

31 (2d Cir. 1975), cert. denied, 429 U.S. 890 (1976); Margrave v.

British Airways, 643 F. Supp. 510 (S.D.N.Y. 1986); Salerno rv.

Pan American World Airways, Inc., 606 F. Supp. 656 (S.D.N.Y.

1985).

Accordingly, U.S. courts have made clear that the Con-

vention imposes “close to absolute liability” (Pet. App.

13a) for passenger injury and death arising from an air-

line’s negligence in failing to conduct security searches.™

The Second Circuit's holding places airlines in an un-

tenable situation. On the one hand, it subjects them to

strict liability under the Convention for failing to conduct

a search. On the other hand, it subjects them to poten-

tially unlimited liability under state law for conducting

such a search—even where, as here, the search conforms

to procedures mandated by U.S. and international law.

This result is not only unfair, but plainly inconsistent with

the maintenance of an effective security program.

Moreover, the airline employees conducting these

searches will no longer be able to rely on the Convention

as circumscribing their liability. The Second Circuit's

decision adds an additional consideration into the mix of

complex factors employees weigh in determining whether

to search any particular passenger: whether the passenger

is likely to sue for unlimited damages if the search does

not disclose a weapon or explosive device. The decision

thus not only defeats the Convention's purpose of unify-

ing liability rules for airlines, but also threatens to com-

promise the security of airlines and passengers.

Vv. THE COURT BELOW BASED ITS DECISION ON

A FUNDAMENTAL MISCONSTRUCTION OF THE

CONVENTION.

The lower court's reasoning misconstrues the scope of

the Warsaw Convention, as applied by the courts of this

country, and effectively rewrites Article 17. The court

concluded that if personal injuries arising from mandated

59 See, e.g., In re Air Disaster at Lockerbie, Scotland, 37 F.2d

804, 811 (2d Cir. 1994), cert. denied, 513 U.S. 1126 (1995).

60 See Reed v. Wiser, 555 F.2d 1079 (2d Cir.), cert. denied, 434

U.S. 922 (1977) (airline employees are indemnified by their em-

ployer for claims arising within the scope of their employment).

security measures were not actionable under state law

without regard to the Convention, it 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. .. .” ™

By incorrectly interpreting the meaning of the term “acci-

dent,” ® the court of appeals failed to recognize that

if an airline conducts a security search in a negligent

or intentionally tortious manner, that activity is certainly

unexpected by the passenger and unusual for the airline.

Such a search would thus be an “accident” covered by the

Convention, and the passenger would have a remedy.™

The Convention’s recently waived passenger liability

limits had often been criticized as being wholly inade-

quate. Nevertheless, there is nothing absurd about a

treaty that precludes liability where no “accident” within

its meaning can be found. This Court recognized in TWA

v. Franklin Mint that rewriting the Convention’s rules is

The Warsaw Convention provides the exclusive basis

for seeking a remedy for any personal injury incurred dur-

ing international air transportation, whether or not the

event can be termed an “accident.” If an “accident”

can be found from the facts (as the district court did

61 Pet. App. 20a.

62 See, supra n.45 and accompanying text.

63 Air France v. Saks, 470 U.S. at 405 (1985).

64 In re Korean Air Lines Disaster, 829 F.2d 1171 (D.C. Cir.

1987); Department of Transportation Order 96-10-7, 1996 DOT

Av. LEXIS 640 (D.0.T. Oct. 3, 1996). See supra n.22.

65 466 U.S. 243 (1984).

66 Warsaw Convention, Article 1.

87 As noted (supra n.3), an airline is liable under Article 17 of

the Convention for injuries sustained in the course of international

air transportation that result from an “accident.” See Air France

v. Saks, 470 U.S. at 396.

here) and if the “accident” results in physical injury

(which Respondent does not allege), then the Convention

provides a remedy.

If, however, an “accident” cannot be found (as the

court of appeals held), or if an “accident” is found to have

occurred but there is no physical injury (as the district

court found), then the Convention does not provide a

remedy. In all cases, however, the Convention's uni-

formity and exclusivity dictate that parties turn to the

Convention—and the Convention alone—in seeking re-

dress for personal injuries incurred in international air

transportation.

VI. THE U.K. HOUSE OF LORDS HAS ALSO FOUND

THE CONVENTION TO BE EXCLUSIVE.

To further the Convention's purposes of uniformity and

harmonization, treaty partners properly consider one an-

other’s views. The decision below conflicts directly with

the decision of the U.K. House of Lords in Abnett v.

British Airways.” Affirmation of the decision below will

make U.S. law inconsistent with the law applied by some

of our largest aviation trading partners.

Abnett involved an international flight that arrived for

refueling in Kuwait early on the morning of August 2,

1990, about five hours after Iraqi forces had begun to

invade Kuwait. The passengers disembarked into the tran-

sit lounge to await departure. But while they were in the

terminal, the Iraqis took them prisoner and they became

“human shields.” ™

68 See Eastern Airlines, Inc. v. Floyd, 499 U.S. 530; Air France v.

Saks, 470 U.S. 392.

69 See Air France v. Saks, 470 U.S. at 404.

70 Pet. App. 34a-65a; accord, Emery Air Freight Corp. v. Nerine

Nurseries Ltd. [1997] 3 NZLR 723.

Tl Pet. App. 38a.

Judith Abnett and the Sidhu family were among the

passengers. Abnett sought relief in British courts for dam-

age occasioned by delay under Article 19 of the Conven-

tion and at common law for breach of contract. The Sidhu

family did not plead under the Convention at all since

they filed their claim outside the two-year time limit al-

lowed under Article 29 of the Convention. Instead, they

based their claim on common-law negligence.

The House of Lords, in reviewing their appeals, care-

fully analyzed the Convention's text and travaux prepara-

toires, as well as this Court's decisions in Air France v.

Saks and Eastern Air Lines v. Floyd and a French deci-

sion arising out of the same events.” Finding no assist-

ance in U.S. authorities, Lord Hope writing for the panel

found that Article 24’s phrase “the cases covered by Ar-

ticle 17” extends “to all claims made by the passenger

against the carrier arising out of international carriage by

air” (other than delay and certain baggage claims).™

The House of Lords dismissed the common-law claims and

found the Sidhu’s baggage claim time-barred.

Neither party had made a claim under Article 17, be-

cause the principal basis for each of their claims was psy-

chological damage for which Article 17 gives no remedy.”

The parties also apparently believed that there was no

“accident” within the meaning of Article 17. They appar-

ently did not argue that being taken hostage at the begin-

72 The Court distinguished a French decision arising out of the

same events. Pet. App. 63a. In that case, the court of first instance

found that the events did not occur in the course of disembarking

(and hence in international air transportation) within the meaning

of Article 17. The French court applied French law to allow plain-

tiffs damages unrestricted by Article 22. An intermediate French

appellate court upheld the lower court’s decision on November 12.

1996. British Airways v. Mohamed, No. 95-26736, Judgment at i1

(CA Paris, 1996).

73 Pet. App. 55a.

74 See, e.g., Eastern Airlines, Inc. v. Floyd, 499 U.S. 530.

ning of a war during an international journey was “an un-

expected or unusual event external to the Passenger,”

thereby meeting the Air France v. Saks test. Nonetheless,

the House of Lords was somewhat concerned by the lack

of a remedy:

An answer to the question which leaves claimants

without a remedy is not at first sight attractive. It

is tempting to give way to the argument that where

there is a wrong there must be a remedy. . . . Along-

side these principles, however, there lies another

great principle, which is that of freedom of con-

tract. .. . [The Convention] was not designed to

provide remedies against the carrier to enable all

losses to be compensated. It was designed instead to

define those situations in which compensation was to

be available... . A balance was struck, in the in-

terests of certainty and uniformity.”

CONCLUSION

For the foregoing reasons, the Court should uphold

the exclusivity of the Convention and reverse the holding

of the United States Court of Appeals for the Second

Circuit.

Respectfully submitted,

Of Counsel : WARREN L. Dean, Je

RoBert P. WARREN Counsel of Record

Davi A. Berc JOSEPH O. Crack

AIR TRANSPORT ASSOCIATION PATRICIA N. SNYDER

OF AMERICA HEATHER L. MILLer

1301 Pennsylvania Ave., N.W. DYER Euuis & Josern

Suite 1100 600 New Hampshire Ave. NW

Washington, D.C. 20004-1707 Washington, D.C. 20037

(202) 626-4000 (202) 944-3000

Attorneys for Amicus Curiae

Air Transport Association

Dated: July T6, 1998 of America

7 Pet. App. 64a-65a.

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