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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1999
- **Citation:** 525 U.S. 155

## Text

—

MOTION FILED

mn 16 1998
No. 97-475

IN THE

Supreme Court of the United States
OCTOBER TERM, 1997

EL AL ISRAEL AIRLINES, LTD.,
Petitioner,
— ean
TSUI 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 AMICUS CURIAE OF
THE INTERNATIONAL AIR TRANSPORT ASSOCIATION
IN SUPPORT OF PETITIONER

BERT W. REIN

Counsel of Record

EDWIN O. BAILEY

WILEY, REIN & FIELDING
1776 K Street, N.W.
Washington, D.C. 20006
(202) 429-7000
Attorneys for Amicus Curiae

July 16, 1998

No. 97-475

IN THE
Supreme Court of the Anited States

OCTOBER TERM, 1997

EL AL ISRAEL AIRLINES, LTD.,
Petitioner,
eaten
Tsu! 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 International Air Transport Association (IATA)
respectfully moves for leave to file the attached Brief as
amicus curiae in this case. The consent of counsel for the
petitioner was obtained. The consent of counsel for
respondent was requested and refused. This Court
previously granted IATA’s motion for leave to file a Brief as

amicus curiae in Support of the Petition for Writ of
Certiorari. 1998 U.S. LEXIS 3398 (May 18, 1998).

IATA’s interest in this case derives from its efforts on
behalf of its 256 member air carriers to preserve the Warsaw
Convention' as the uniform determinant of international air
carrier liability to passengers while voluntarily modernizing
and liberalizing its application. Voluntary initiatives led by
IATA are ongoing and strongly supported by the United
States Department of Transportation and other governmental
authorities.

The Court’s decision on the issue presented will have a
significant impact on these efforts. As set forth more fully in
the Brief attached to this motion, it is of national and
international importance that this Court’s decision take
cognizance of these developments.

Respectfully submitted,

BERT W. REIN

Counsel of Record

EDWIN O. BAILEY

WILEY, REIN & FIELDING
1776 K Street, N.W.

Washington, D.C. 20006
(202) 429-7000

Attorneys for Amicus Curiae
Dated: July 16, 1998

Convention for the Unification of Certain Rules Relating to
International Transportation by Air, concluded at Warsaw, Poland, October 12,
1929, 49 Stat. 3000, T.S. No. 876, 137 L.N.T.S. 11 (1934), reprinted in 49
U.S.C. § 40105 (1997) (note).

i
TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE. ......00c0ccccccceeeeeeeees 2
INTRODUCTION AND SUMMARY OF

TT iaitailinctartnapeenntinnagmpenianencmnseteeesessocenes 3
TT TE A 6
I. ARTICLE 17 OF THE WARSAW

CONVENTION PROVIDES THE

EXCLUSIVE REMEDY FOR AIRLINE

PASSENGERS INJURED IN

“INTERNATIONAL TRANSPORTATION”
AS DEFINED BY ARTICLE 1(2) OF THE

A. The Court Below Improperly Engaged In
Judicial Activism In Attempting to Find a
Set of “Ordinary Torts” Outside The

2. In Denying Article 17 Full Preemptive
Effect, The Court Ignored The Necessary
Consequences Of Federal Preemj.ion
Analysis As Determined In The Fifth
Circuit’s Potter Decision ................-.--.+-+ 10

B. The Second Circuit’s Position Cannot Be
Reconciled With The Shared Expectations
Of The Parties To The Convention................ 12

il
Il. THIS COURT SHOULD REAFFIRM THE
UNITED STATES’ COMMITMENT TO A
UNIFORM, GLOBAL PASSENGER
~ COMPENSATORY LIABILITY REGIME.........

A. The Air Carriers’ Current Initiative To
Modernize And Liberalize The Warsaw
Convention’s Worldwide Article 17
Is Ongoing And Had Had The Strong
Support Of The U.S. Department of

B. The Air Carriers’ Efforts To Modernize The
Warsaw Convention Passenger Liability
Regime Worldwide Would Be Seriously
Impaired If the Convention Is Not Read To
Provide The Exclusive Remedy For
Personal Injuries In “International
EE cheeentitagttinitetarteccmatecen

Ge a ecrcnirccnsesctnercinlapitiniiledunsiaiinicidenibauiiaaess

TABLE OF AUTHORITIES
Cases Page
Abnett v. British Airways pic, | All E.R. 193 (H.L.

iii iantsciatenennestninchabdeitibtnisnabesiindsisinaibiaiainipindatidnsitinete passim
Air France v. Saks, 470 U.S. 392 (1985) ..........0c0008 passim
Dooley v. Korean Air Lines Co., Lid, 118 S. Ct.

I sietciethitihcalansiihteleemscitieahaliainiiepatainmmmencaqnene 13
Eastern Airlines, Inc. v. Floyd, 499 U.S. 530

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

STE cccsoricittntninapthbibanieitipsieimaninctndumienitiganactinenié 5,10,11
Zicherman v. Korean Air Lines Co., Lid, 516 U.S.

BO ED Adnereipitientstiatibdiesihiinecrinlapicienninbiebtanienini 7,14

STATUTES
ee witecirenninttlitciterrncenearnignepincsinig 15
es ucintntciinninenncnensnhsisiniaiprictipbmntaisenaine 15

Convention for the Unification of Certain Rules
Relating to International Transportation by Air,
concluded at Warsaw, Poland, October 12, 1929,
49 Stat. 3000, T.S. No. 876, 137 L.N.T.S. 11
(1934), reprinted in 49 U.S.C. § 40105 (1997) ..... 2,14

MISCELLANEOUS
Council Regulation (EC), No. 2027/97 (Oct. 9,
International Air Transport Association:
Agreement Relating to Liability Limitations of

The Warsaw Convention, Order 96-10-7, 1996
WL 563872 (Dep’t of Transp. Oct. 3, 1996)......... 17

iv

International Air Transport Association:

Agreement Relating to Liability Limitations of

The Warsaw Convention, Order 97-1-2, 1997

WL 4834 (Dep't of Transp. Jan. 8, 1997) ............. 18
Order on Discussion Authority Regarding Limits

and Conditions of Passenger Liability

Established by the Warsaw Convention, 60 Fed.

Reg. 12813 (Dep’t of Transp. 1995) ..................... 15,20
Internationa! Civil Aviation Organization

RE 4
International Civil Aviation Organization

EPOCURE FEET O ID cnccccscesssesintecescsssancessecsece 4
Letter from Waxman, Solicitor General, to Suter,

Clerk of the Supreme Court of the United States

RR eR eae TN HS 4
Report of the Meeting of the Special Group on the

Modernization and Consolidation of the

“Warsaw System” (SGMW), Montreal, April 14-

No. 97-475

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

EL AL ISRAEL AIRLINES, LTD.,

Petitioner,

—v-—

Tsu!l YUAN TSENG,
Respondent.

On Writ Of Certiorari to the United States
Court Of Appeals for the Second Circuit

BRIEF OF AMICUS CURIAE THE INTERNATIONAL
AIR TRANSPORT ASSOCIATION IN SUPPORT OF
PETITIONER

The International Air Transport Association ("IATA")
respectfully submits this brief as amicus curiae in support of
petitioner.’

' This brief was not authored in whole or in part by counsel for a party, and
no person or entity, other than the amicus curiae, its members, and its counsel,
made a monetary contribution to the preparation and submission of this brief.

2
INTEREST OF AMICUS CURIAE

IATA is an organization of some 256 air carriers,
including virtually all of the international air carriers, the
majority of which are either owned or controlled by
sovereign nations.’ Since its establishment in 1945 by
Special Act of the Canadian Parliament, IATA has worked
closely with governments and __intergovernmental
organizations to achieve and maintain uniformity in the
interpretation of international agreements affecting civil
aviation, including the Warsaw Convention.’ IATA has also
worked to assure that such agreements are responsive to
inevitable changes in technology, economics and
jurisprudence. These activities are consistent with IATA's
overriding purpose of promoting safe, regular and
economical air transportation for the benefit of all peoples of
the world.

Many of IATA’s member air carriers transport
passengers, baggage and goods to and from the United States
and, therefore, are subject to United States jurisdiction.
IATA is currently playing a major role in promoting
voluntary air carrier agreements that waive the Warsaw
Convention’s limitation of liability for international
passenger air transportation and restrict use of certain
defenses. These efforts have been approved by the U.S.
Department of Transportation (“DOT”) and many other
government authorities around the world. The Second

A complete list of LATA's member air carners is found in the Appendix to
its October 10, 1997 Brief Amicus Curiae in Support of Petitioner at the
certiorari Stage.

’ Convention for the Unification of Certain Rules Relating to International
Transportation by Air, concluded at Warsaw, Poland, October 12, 1929, 49 Stat.
3000, T.S. No. 876, 137 L.N.T.S. 11 (1934), reprinted in 49 U.S.C. § 40105
(1997) (note). The Articles cited herein are reproduced at Appendix A.

3

Circuit’s decision in Tseng v. EL AL Israel Airlines, Ltd,
122 F.3d 99 (2nd Cir. 1997), if sustained, could inhibit this
global effort by denying IATA member air carriers serving
the United States the benefit of the Convention’s
fundamental liability boundaries and uniform liability
regime. It would thus make IATA’s effort to encourage
additional air carriers to adopt liberalized and modernized
liability provisions substantially more difficult because
Carrier interest in voluntarily enhancing passenger rights
under the Convention is tied to the corresponding benefit of
preserving a properly bounded and uniform liability regime.

Accordingly, [ATA has a direct and substantial interest in
the case before the Court.

INTRODUCTION AND SUMMARY OF
ARGUMENT

This case comes before the Court at an extraordinary time
in the history of the Warsaw Convention liability regime.
Since 1995, more than 100 air carriers, including the vast
majority of the major international carriers, have agreed to
waive all monetary limitations on compensatory damages
permitted under the Convention and to absorb a substantial
amount of strict liability in Convention cases. The voluntary
agreements leading to these actions have been endorsed as a
“gigantic step” forward by the DOT, used as a standard for
European air carrier liability by the European Union‘ and
applauded by governments throughout the world. They may
indeed have broken the logjam which has heretofore
precluded governments from comprehensively updating the

* Council Regulation (EC) No. 2027/97 (Oct. 9, 1997), eff. Oct. 17, 1998
(extending regime of no limits and 100,000 Special Drawing Rights strict
liability to both domestic and international operations of European air carriers).

4

Convention’ and they have apparently persuaded the United
States Senate to move forward ratification of Montreal
Protocol No. 4 to the Convention, and thus reaffirm the
Convention’s occupation of the field of airline liability for
passenger injury in international air transportation. See
Letter from Waxman, Solicitor General, to Suter, Clerk of
the Supreme Court of the United States, July 1, 1998 at 2.

The Second Circuit’s decision in Tseng is both legally
erroneous and threatening to this positive movement. If
affirmed, it would create liability in the absence of both the
accident -- ie. “an unexpected or unusual event or
happening that is external to the passenger”, Air France v.
Saks, 470 U.S. 392, 405 (1985) (emphasis added) -- and the
physical injury prerequisites t+ recovery under Article 17,
Eastern Airlines v. Floyd, 499 U.S. 530, 535-36 (1991).
This liability would be unbounded by Convention rules and
administered under a variety of state laws. It would thus
depart radically from a treaty regime which, as this Court
previously has emphasized, is designed to promote certainty
and uniformity in the law governing air carrier liability in
international air transportation.

The consequences of such a departure would be extremely
unfortunate. The preservation of insurable boundaries and

* On November 26, 1997, the Council of the International Civil Aviation
Organization (“ICAO”) established a Special Group on the Modernization and
Consolidation of the “Warsaw System,” (SGMW). See ICAO Doc. C-
WP/10688. This Special Group is considering a draft revised Convention
prepared by the ICAO Legal Committee, ICAO Doc. 9693-LC/190, and is
currently reviewing the comments of Member States on the draft text in
contemplation of a Council decision on convening a Diplomatic Conference.
See Report of the Meeting of the Special Group on the Modernization and
Consolidation of the “Warsaw System” (SGMW), Montreal, Apri! 14-18, 1998,
(noting “a strong commitment towards the swift finalization of the new
instrument” to “seize this historic opportunity”).

5

uniform liability rules in international air transportation
under the Convention has been the carrot which has induced
many IATA members to voluntarily waive Article 22(1)
limits in Article 17 cases. Similarly, the facilitation of
settlement by uniform, predictable Convention rules has
encouraged carriers to accept a substantial measure of strict
liability as a further means of minimizing litigation costs.
The decision below, by contrast, would leave carriers
uncertain as to whether Convention rules would apply to any
particular claim since plaintiffs’ attorneys would certainly
plead non-Convention claims as alternatives or supplements
in virtually every case arising in international air
transportation. Moreover, litigation costs undoubtedly
would escalate as novel, non-Convention, claims were
adjudicated and settlement postponed.

The inevitable result would be a significant disincentive
to expansion of participation in beneficial intercarrier
agreements. In addition, the lure of litigating outside
Convention boundaries could stir opposition to United States
participation in continuing international negotiating efforts
to enhance the position of passengers under the treaty regime
while reaffirming its preemptive purpose and uniform
liability rules.

IATA believes that the wording, purpose and negotiating
history of the Warsaw Convention require reversal of the
decision below. The preclusive effect of Article 17
limitations was recently affirmed by the House of Lords for
exactly these reasons in Abnett v. British Airways plc, | All
E.R. 193 (H.L. 1996) and IATA encourages the Court to
give weight to this well-considered decision as well as the
Fifth Circuit’s analysis in Potter v. Delta Airlines, 93 F.3d
881 (Sth Cir. 1996) which reached the same conclusion.
Thus, both on legal and practical grounds, reversal of the
decision below is essential.

6
ARGUMENT

I. ARTICLE 17 OF THE WARSAW
CONVENTION PROVIDES THE EXCLUSIVE
REMEDY FOR AIRLINE PASSENGERS
INJURED IN “INTERNATIONAL
TRANSPORTATION” AS DEFINED BY
ARTICLE 1(2) OF THE CONVENTION.

Petitioner and the Solicitor General will address in detail
the errors in the Second Circuit’s reasoning and analysis
which led it to deny preemptive effect to the Convention’s
liability regime. However, there are several points of special
interest to the international airline community that IATA
wishes to emphasize.

A. The Court Below Improperly Engaged In
Judicial Activism In Attempting to Find a
Set of “Ordinary Torts” Outside The
Convention.

To reach its ultimate conclusion denying full preemptive
effect to the Convention’s liability regime, the Second
Circuit chose to ignore this Court’s admonitions on how the
Convention is to be interpreted, and adopted a narrow
approach based more on assertion than reason. It also
cramped the preemptive effect of the treaty, which is the
supreme law of the land, without engaging in any of the
traditional federal preemption analysis required by this
Court’s precedents.

:

1. The Second Circuit Failed To
Follow This Court’s Guidance In
Interpreting The Convention.

In Saks, Floyd, and Zicherman v. Korean Air Lines, 516
U.S. 217 (1996), this Court set out clear guidelines to be
applied when interpreting the Convention.

First, the French text should be consulted to guide the
analysis “because it is our responsibility to give the specific
words of the treaty a meaning consistent with the shared
expectations of the contracting parties . . . [and] because the
Warsaw Convention was drafted in French by continental
jurists.” Saks, 470 U.S. at 399. The French version is also
“the only authentic text” of the Convention. Floyd, 499 U.S.
at 535.

Second, isolated comments of delegates reported in the
minutes of the 1929 Warsaw Conference are not
determinative of the meaning of Convention Articles
because these “remark{s] [do] not have the authority of
submissions by the drafting committee,” and may be nothing
more than generalizations that do not “focus[]} specifically”
on the interpretive issue under consideration. Zicherman,
516 U.S. at 227.

Third, with particular reference to the scope of air carrier
liability and Article 17, interpretations that best “accord[]
with the Warsaw Convention’s stated purpose of achieving
uniformity of rules governing claims arising from
international air transportation” are preferred. Fleya, 499
U.S. at 552. In general, “treaties are construed more
liberally than private agreements, and to ascertain their
meaning we may look beyond the written words to the
history of the treaty, the negotiations, and the practical
construction adopted by the parties.” Saks, 470 U.S. at 396
(internal citation omitted).

8

The Second Circuit ignored each of these interpretive
principles. First, it looked only at the English text of Article
24(2) in concluding that the Convention was exclusive only
where presumptive liability arose under Article 17. Tseng,
122 F.3d at 104-105. The Solicitor General’s Brief in
Support of Petition for Writ of Certiorari establishes that the
French text’s “[djams les cas prévus a l’article 17”
encompasses all claims “in the circumstances anticipated [or
‘foreseen’] in Article 17” i.e., where a passenger seeks relief
for injuries sustained between embarkation and
disembarkation. See Solicitor General’s Brief in Support of
Petition for Writ of Certiorari at 14-15. The term “les cas
prévus” “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°.” Jd. The Second Circuit’s English-
only analysis, by ignoring the more expansive meaning of
the Convention’s French text, fails to “give the specific
words of the treaty a meaning consistent with the shared
expectations of the contracting parties.” Saks, 470 U.S. 399.

Second, to bolster its English language reading of Article
24(2), the Second Circuit relies on vague, non-specific
remarks by individual delegates or delegations in the English
translation of the minutes of the 1929 Warsaw Conference.
Tseng, 122 F.3d at 105. However, the statements it cites do
not specifically address the question at issue. Rather, the
referenced remarks merely suggest that the delegates were
aware that the Convention would not deal with all issues
affecting international commercial aviation and that a
number of undefined subjects which are not addressed by the
Convention would, per force, be left to domestic laws of the
various signatory nations for resolution. Lord Hope of

9
Craighead, speaking for the House of Lords in Abnett,
looked at these same minutes and found nothing in them to
support the argument against giving less than full preemptive
effect to Article 17’s liability boundaries:

But these are mere straws in the wind which
emerged during several days of detailed
discussion to which many delegates
contributed. I do not find a sufficiently clear
and consistent expression of views here about
the objects of the Convention on the point
which is at issue in this case to enable me to
say that the answer to the problem is to be
found in the minutes. The most that can be
said is that I have not found anything in these
minutes or in the accompanying material
which contradicts the impression which I
have already formed on reading the
convention.

Abnett, 1 All E.R. at 208.

Third, the Second Circuit ignores this Court’s strong
admonition that the Convention should be construed
consistently with the “shared expectations of the contracting
parties,” including most specifically, the desire to achieve
uniformity in the laws governing international transportation
by air. Saks, 470 U.S. 399. Its newly-minted “ordinary”
injury concept covering injuries within the international air
transportation scope of Article 17 — which it then illustrates
with the example of a malfunctioning escalator causing
injury outside the scope of Articles 17 and 24(2) -- would
result in passengers claiming injury from the same incident
on the same flight being treated differently if, for example,
one claimed physical injury and one claimed non-physical
injury for which relief is barred under Article 17. See Floyd,

10
499 U.S. at 552. No principle of uniformity could survive
this concept whose practical result would be to ensure a mix
of covered, Convention law, and “ordinary”, state-law,
claims in virtually every injury case.

2. In Denying Article 17 Full Preemptive
Effect, The Court Ignored The Necessary
Consequences Of Federal Preemption
Analysis As Determined In The Fifth
Circuit’s Potter Decision.

It is undisputed that respondent’s alleged harm occurred
during embarkation in international travel by air and thus
“inside” the substantive scope of the Warsaw Convention as
defined by Articles 1 and 17. Nevertheless, the Second
Circuit declares that respondent’s remedy lies “outside” the
Convention because she could not meet Article 17's
requirements for establishing presumptive liability. Tseng,
122 F.3d at 104-05. The decision thus circumvented all of
the Convention’s conditions and limitations which establish
uniform procedural, jurisdictional and substantive law for
passenger liability.

In reaching this result, the Second Circuit failed to apply
this Court’s precedents on federal preemption. It also
summarily rejected the Fifth Circuit’s decision in Potter v.
Delta Air Lines, 98 F.3d 881 (Sth Cir. 1996) giving Article
17 full federal preemptive effect. Tseng, 122 F.3d at 107.
This telling omission strongly suggests that the court below
could find no flaw in the Potter court’s reasoning or in its
application of this Court’s prior federal preemption
decisions.

The Fifth Circuit’s reasoning in Potter is indeed
compelling. First, it properly followed this Court’s guidance
in Floyd and Saks by interpreting the Convention “in order

1]

to advance its [apparent] goals.” Potter, 98 F.3d at 885. To
ascertain these goals, it cited this Court’s findings in
Zicherman, concluding that “[a] primary function of the
Warsaw Convention is to foster uniformity in the laws
governing international air carrier liability.” /d

Second, applying this Court’s federal preemption criteria,
the Fifth Circuit inquired whether the “area” requiring
uniformity, that is, international passenger liability, would
be frustrated if state court actions could be brought within
the jurisdictional scope of Article 17 whenever the claimant
could not meet one or more of that Article's requirements for
establishing liability. /d The court then undertook a
detailed analysis to show how state-law actions would
nullify significant Convention conditions and limitations,
that this Court’s previous decisions on the scope of
allowable Article 17 recoveries would be circumvented, and
that plaintiffs could “plead artfully” around Article 17 in
order to “forum-shop” in U.S. courts. /d. at 885-86.

Ignoring the Fifth Circuit's compelling analysis, the
Second Circuit attempted to dismiss Potter by contending (i)
that the Convention’s goal of uniformity “has not always
been found feasible in all areas of international travel,” (ii)
even where possible, uniformity cannot justify altering the
operating structure of the Convention, citing Zicherman, and
(iii) uniformity could be achieved equally as well by
allowing recovery outside the Convention, “under a uniform
body of law.” Tseng, 122 F.3d at 107. The first point, even
if true in the abstract, does not diminish the need to preserve
uniformity where it is feasible. See Abnett, | All E.R. at
212. The second point is valid only if the court’s misreading
of Article 24 is assumed. As to the third point, the Potter
court explained that there is no “uniform body of law”
applicable to the state-law based cases that the Second
Circuit would allow. Potter, 98 F.3d at 886. To the

12
contrary, there are widely varying procedural and
substantive laws in the 50 states, all of which would
potentially be applicable. This is the antithesis of the
uniformity on passenger liability law and procedure sought
to be achieved by the signatories to the Convention.

B. The Second Circuit’s Position Cannot Be
Reconciled With The Shared Expectations
Of The Parties To The Convention.

This Court has stated that the “shared expectations of the
contracting parties” must be taken into account when
interpreting the Convention. Saks, 470 U.S. at 399. One
such unchallengeable expectation is uniformity of the law
applicable to passenger liability. Floyd, 499 U.S. at 532.
The Second Circuit acknowledges this as a goal of the
parties to the Convention, but nonetheless asserts that this
objective would be “absurd” or “illogical” if it meant that
claimants within the jurisdictional scope of Article 17, but
unable to satisfy its requirements for carrier liability, could
not step “outside” the Convention and ignore all its
conditions and limitations. Tseng, 122 F.3d at 106-07.

There is, however, no illogic to the parties’ contrary
shared expectation. Rather, it would be illogical to render
illusory the concept of uniformity by creating a parallel “opt-
- out” personal liability regime wholly reliant on the differing
domestic laws of the various nations around the world. In its
Abnett decision, the House of Lords made this point clearly
when it observed that the signatories did not “set{] alongside
the convention ... an entirely different set of rules which
would distort the operation of the whole scheme.” Abnett, |
All E.R. at 213.

Moreover, a treaty-based determination that air carriers
should not be exposed to liability, under a presumptive fault

13
regime, for non-corporal passenger injuries associated with
individual reactions to the experience of flight or the
processes involved with the embarking or disembarking of
such flights hardly seems “absurd”. /d. at 207.

Consistent with this expectation of limitations on carrier
responsibility for non-accidental or non-corporal injury, the
Convention requires that all passengers be given notice of
the applicability of the treaty with respect to the air carriers’
liability for damages. The notice provides passengers the
opportunity to obtain supplemental insurance or to take other
precautions before embarking on an international journey.
Article 23 also invalidates “[a]ny provision [in the contract
of carriage] tending to relieve the carrier of liability or to fix
a lower limit than that which is laid down in this convention
.... As the Solicitor General has pointed out, it would
have made no sense and would have been extremely one-
sided and odd to have restricted the air carriers’ right to limit
liability by contract if passengers were free to pursue
liability claims “within” Article 17 jurisdiction but “outside”
its express terms. See Solicitor General’s Brief in Support of
Petition for Writ of Certiorari at 18-19; see also, Dooley v.
Korean Air Lines Co., Ltd, 118 S.Ct. 1890 (1998) (where
Congress has struck a balance denying recovery for certain
claims and claimants under Death On The High Seas Act,
applicable under Article 17, Court cannot substitute its own
views).

The Second Circuit’s opinion would, therefore, render the
Convention’s goal of uniformity and its conditions and
limitations on passenger liability a nullity. This result
cannot be accepted as reflecting the “shared expectations” of
the Convention’s signatories, including the Government of
the United States.

14
II. THIS COURT SHOULD REAFFIRM THE
UNITED STATES’ COMMITMENT TO A
UNIFORM, GLOBAL PASSENGER
COMPENSATORY LIABILITY REGIME.

The Warsaw Convention is the most widely adhered to
private international law treaty. Some 120 nations are
parties to the agreement. The Convention is universally
recognized as a unique, remarkable achievement because of
its establishment of a uniform liability regime for
international transportation by air which provides certainty
and common legal expectations for air carriers, passengers,
and shippers throughout the world. Since its proclamation
by President Franklin Delano Roosevelt on October 29,
1934, the Convention has been the supreme law of the land.
See, 49 Stat. 3000 et seq.; cf, Zicherman, 516 U.S. at 226.

To preserve “uniformity in the law of international air
travel,” Zicherman, 516 U.S. at 350, against concerns that
certain of the Convention’s limits were unduly restrictive on
passengers, IATA and the world’s air carriers have, during
the past several decades, undertaken certain voluntary
initiatives to modernize and liberalize those rules. Thus, in
1966, the airlines entered into a multilateral agreement under
which they voluntarily raised the Article 22(1) limit of
liability for personal injury or death to $75,000 and waived
the non-negligence defense in Article 20(1) for claims up to
that amount, thus providing for virtual strict liability when
such damages had been demonstrated. More recently, when
it became apparent that governments were unable to succeed
in modernizing the liability regime through treaty
amendment, IATA and the world’s leading air carriers once
again liberalized the liability rules, this time waiving all
Article 22(1) liability limits for passengers worldwide, and
their Article 20(1) non-negligence defenses for U.S.-related

15
transportation up to 100,000 Special Drawing Rights, or
approximately $135,000.

These voluntary waivers, however, have depended, and
continue to depend, on the maintenance of a common,
uniform understanding that Article 17 bounds the claims that
can be brought. By reaffirming the need for global
uniformity on the law of passenger liability and rejecting the
Second Circuit’s contrary position, this Court can further the
airlines’ initiative to globalize these waivers to the benefit of
all international passengers.

A. The Air Carriers’ Current Initiative To
Modernize And Liberalize The Warsaw
Convention’s Worldwide Article 17
Passenger Compensatory Liability Regime
Is Ongoing And Had Had The Strong
Support Of The U.S. Department of
Transportation.

To comprehend fully the impact of the Second Circuit’s
decision, it is necessary for this Court to understand in some
detail the extensive efforts by IATA and the world’s air
carriers and the DOT in fashioning the most recent changes
to the Warsaw passenger liability regime.

The process began on February 22, 1995 when the DOT
granted IATA’s application for so-called “discussion
authority.” Order on Discussion Authority Regarding Limits
and Conditions of Passenger Liab. Est. by the Warsaw
Convention, 60 Fed. Reg. 12813 (Dep’t of Transp. 1995).
This authority, under 49 U.S.C. §§ 41308 and 41309,
granted antitrust immunity for the air carriers to discuss and
reach agreements on changing or even eliminating the
limitation of liability in Article 22(1) of the Convention and
waiving one or more of the defenses found in Articles 20(1)

16
and 21. Pursuant to this “discussion authority,”
representatives of the world’s air carriers held a series of
meetings in Washington which were monitored by the DOT
and the Department of Justice.

The first agreement to emanate from these sessions was
the “IATA Intercarrier Agreement on Passenger Liability.”
This agreement, which came to be known as the “IIA,” was
unanimously endorsed at the IATA Annual General Meeting
on October 31, 1995. It is an umbrella agreement pursuant
to which the air carriers agree, inter alia, “[t}o take action to
waive the limitation of liability on recoverable compensatory
damages in Article 22 paragraph 1 of the Warsaw
Convention as to claims for death, wounding or other bodily
injury of a passenger within the meaning of Article 17 of the
Convention ....” The IIA reserves all available
Convention defenses, but provides that any air carrier may
waive any defense, including the waiver of any defense up to
a specified monetary amount of recoverable compensatory
damages, as the circumstances may permit. Thus, by the fall
of 1995, many of the world’s air carriers had taken the first
step toward waiving any limitation of liability to compensate
for injuries cognizable under Article 17.

The next step was to reach agreement on measures to
implement the IIA in air carrier tariffs and conditions of
carriage. Further meetings of the air carriers were held
pursuant to DOT discussion authority. IATA carriers
evolved the “Agreement on Measures to Implement the
IATA Intercarrier Agreement” (“MIA”), under which
signatories agreed to tariff language waiving, inter alia, any
limitation of liability under Article 22(1) for all recoverable
compensatory damages arising under Article 17. Air carriers

* — The full text of the IIA is found at Appendix B.

17
also could use the MIA tariff language to waive Article
20(1) non-negligence defenses for portions of the claims that
did not exceed 100,000 Special Drawing Rights, or the
equivalent of approximately $135,000 at current exchange
rates.’ In other words, carriers, responding to the DOT,
could agree to virtual strict liability up to the latter amount
and waive any financial limitation on compensatory

damages.

U.S. air carriers, many of which are also IATA members,
developed a further agreement under the auspices of the Air
Transport Association of America (“ATA”). This
agreement, called the “ATA Provisions Implementing the
IATA Intercarrier Agreement to be Included in Conditions
of Carriage and Tariffs” (“IPA”), took the additional step of
permitting, subject to applicable law, recoverable Article 17
compensatory damages to be determined by reference to the
law of the domicile or permanent residence of the passenger.

The three air carrier agreements were submitted to the
DOT on July 31, 1996 for approval and antitrust immunity
under 49 U.S.C. §§ 41308 and 41309. On October 3, 1996,
the DOT issued a Show Cause Order tentatively approving
the agreements and recommending certain conditions.
International Air Transp. Assoc.: Agreement Relating to
Liab. Limitations of The Warsaw Convention, Order 96-10-
7, 1996 WL 563872 (Dep’t of Transp. Oct. 3, 1996). In its
Order, the DOT specifically found that “[w]ith their
provision for the worldwide waiver of the Warsaw passenger
liability limits, the agreements have made a gigantic step
toward creating an international liability regime under which
carriers properly accept liability for death or injuries of
passengers utilizing their service.” /d, 1996 WL 563872 at

” The full text of the MIA is found at Appendix C. =

18
*5. The agreements were given final DOT approval on
January 8, 1997. International Air Transp. Assoc.:
Agreement Relating to Liab. Limitations of The Warsaw
Convention, Order 97-1-2, 1997 WL 4834 (Dep’t of Transp.
Jan. 8, 1997).

B. The Air Carriers’ Efforts To Modernize
The Warsaw Convention Passenger
Liability Regime Worldwide Would Be
Seriously Impaired If the Convention Is
Not Read To Provide The Exclusive
Remedy For Personal Injuries In
“International Transportation.”

The extraordinary effort spearheaded by [ATA and the
world’s air carriers with the support of the U.S. DOT to
modernize and liberalize terms of the Warsaw Convention is
driven by the value air carriers place on global uniformity in
passenger liability. IATA has undertaken a worldwide
campaign, in cooperation with many member air carriers, to
persuade all international air carriers to sign the IIA and the
MIA. The agreements are currently being considered by air
carriers throughout the world. As of July 9, 1998, the IIA
had 107 signatories and the MIA had 67 signatories.*

Much work remains to be done to encourage true, global
acceptance of the new, liberalized regime. Until this task
has been completed, the full benefits -- the “gigantic step” to
which the DOT referred -- will not be available to
passengers on international flights throughout the world,
including the millions of United States citizens who travel
between foreign points having no contact with .nis country.

A list of the signatories is found at Appendix D.

19
For all such passengers, the Warsaw Convention -- hopefully
as modified by the IATA air carriers’ agreements -- will
provide their best protection.

IATA, and its air carrier members, undertook this effort to
modernize and liberalize the passenger liability provisions of
the Convention in the expectation that Article 17 would be
given the full preemptive effect that is reflected in the House
of Lords’ Abnett decision and in the Fifth Circuit’s Potter
decision. These decisions provide the certainty on the extent
of liability risks that is the guid pro quo for the air carriers’
willingness to waive liability limits under the Convention’s
presumptive fault regime and to take the additional step of
waiving Article 20(1) defenses up to 100,000 Special
Drawing Rights for United States-related traffic.

Throughout this modernization process, IATA and its air
carriers have been reinforced in these beliefs by the DOT’s
recognition that a uniform, global passenger liability regime
was in the best interest of all passengers, but most
particularly, United States passengers. Thus, at the
beginning of the process, in its Order granting “discussion
authority” on February 22, 1995, the DOT recognized that
the United States could not simply “order” foreign nations to
accord U.S. citizens the relief which it may believe is most
appropriate in the event of harm during international
transportation as defined by Article 1(2) of the Convention.
In discussing and rejecting alternatives to an air carrier
voluntary effort to liberalize and modernize the Warsaw
Convention, the DOT specifically observed:

A final alternative would be for the United
States to unilaterally establish a regime that
all carriers operating to the United States
would have to abide by. This approach,
however, could engender such significant

20 ;
opposition from our trading partners that our
ability to implement the plan unilaterally
would very well be jeopardized.

60 Fed: Reg. at 12813.
The DOT went on to note that:

IATA seeks discussions geared toward
producing a temporary § arrangement,
recognizing the immediate need to increase
the liability limits through a uniform system
of rules. This is fully consistent with our
objectives.

Id
Lastly, the DOT commented:

We have strived for a uniform international
system that allows U.S. victims to receive fair
recoveries within a reasonable period of time.

Id., at 12814.

The Second Circuit’s decision denying preemptive effect
to Article 17 places in jeopardy the guid pro quo on which
the voluntary carrier agreements have been undertaken. It
would be far more difficult, if not impossible, for IATA to
persuade other air carriers to join these agreements if the
U.S. commitment to a uniform liability regime is not
apparent. It might prove equally difficult to go forward to an
enhanced, uniform treaty regime if the state-law based
actions permitted by the decision below were approved by
this Court. Thus, the Second Circuit’s decision, if affirmed,
could greatly shorten the “gigantic step” that the DOT
believed the IATA air carrier agreements would achieve for
all passengers, and in particular, citizens of the United
States. IATA therefore respectfully submits that this Court

21
should follow the recommendation of the Solicitor General?
and reject the Second Circuit’s erroneous interpretation of
the Convention.

. In his Brief in Support of Petition for Writ of Certiorari at 12, the Solicitor
General notes that there are no issues presented here involving Article 25. That
Article, in the case of “willful misconduct” precludes air carrier resort to
“provisions of this convention which exclude or limit his liability.” Any
Suggestion that allegations of “willful misconduct” based on Article 25 also
permit claimants to avoid the requirements of Article 17, which deal with the
establishment of liability rather than its exclusion or limitation, would find no
Support in the language, structure or purpose of the Convention.

22
CONCLUSION
The judgment of the Second Circuit Court of Appeal
should be reversed.
Respectfully submitted,

BERT W. REIN

Counsel of Record
EDWIN O. BAILEY
WILEY, REIN & FIELDING
1776 K Street, N.W.
Washington, D.C. 20006
(202) 429-7000

Attorneys for Amicus Curiae
Dated: July 16, 1998

5
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la
APPENDIX A

Article 1(2)

(2) For the purpose of this convention the expression
“international transportation” shall mean any transportation
in which, according to the contract made by the parties, the
place of departure and the place of destination, whether or
not there be a break in the transportation or a transshipment, -
are situated either within the territories of two High
Contracting Parties, or within the territory of a single High
Contracting Party, if there is an agreed stopping place within
a territory subject to the sovereignty, suzerainty, mandate or
authority of another power, even though that power is not a
party to this convention. Transportation without such an
agreed stopping place between territories subject to the
sovereignty, suzerainty, mandate, or authority of the same
High Contracting Party shall not be deemed to be
international for the purposes of this convention.

Article 3(1)(e)

(1) For the transportation of passengers the carrier must
deliver a passenger ticket which shall contain the following

particulars:

(e) a statement that the transportation is subject
to the rules relating to liability established by this
convention.

2a
Article 17

The carrier shall be liable for damage sustained in the
event of the death or wounding of a passenger or any other
bodily injury suffered by a passenger, if the accident which
caused the damage so sustained took place on board the
aircraft or in the course of any of the operations of
embarking or disembarking.

Article 20(1)

(1) The carrier shall not be liable if he proves 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.

Article 22(1)

(1) In the transportation of passengers the liability of the
carrier for each passenger shall be limited to the sum of
125,000 francs [8300 Special Drawing Rights]. Where, in
accordance with the law of the court to which the case is
submitted, damages may be awarded in the form of
periodical payments, the equivalent capital value of the said
payments shall not exceed 125,000 francs. Nevertheless, by
special contract, the carrier and the passenger may agree to a
higher limit of liability.

Article 23
Any provision tending to relieve the carrier of liability or
to fix a lower limit than that which is laid down in this

convention shall be null and void, but the nullity of any such
provision shall not involve the nullity of the whole contract,

3a
which shall remain subject to the provisions of this
convention.

Articles 24(1) and 24(2)

(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 questions as to who are the persons who have the right
to bring suit and what are their respective rights.

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1b
APPENDIX B

IATA INTERCARRIER AGREEMENT ON
PASSENGER LIABILITY

WHEREAS, The Warsaw Convention system is of great
benefit to international air transportation; and

NOTING THAT: The Convention’s limits of liability,
which have not been amended since 1955, are now grossly
inadequate in most countries and that international airlines
have previously acted together to increase them to the
benefit of passengers;

The undersigned carriers agree

l. To take action to waive the limitation of liability on
recoverable compensatory damages in Article 22 paragraph
1 of the Warsaw Convention’ as to claims for death,
wounding or other bodily injury of a passenger within the
meaning of Article 17 of the Convention, so that recoverable
compensatory damages may be determined and awarded by
reference to the law of the domicile of the passenger.

2. To reserve all available defences pursuant to the
provisions of the Convention; nevertheless, any carrier may
waive any defence, including the waiver of any defence up
to a specified monetary amount of recoverable compensatory
damages, as circumstances may warrant.

l “WARSAW CONVENTION” as used herein means the Convention
for the Unification of Certain Rules Relating to International Carriage by Air
singed at Warsaw, 12th October 1929, or that Convention as amended at The
Hague, 28th September 1955, whichever may be applicable.

2b
3. To reserve their rights of recourse against any other
person, including rights of contribution or indemnity, with
respect to any sums paid by the carrier.

4. To encourage other airlines involved in the
international carriage of passengers to apply the terms of this
Agreement to such carriage.

5. To implement the provisions of this Agreement no
later than 1 November 1996 or upon receipt of requisite
government approvals, whichever is later.

6. That nothing in this Agreement shall affect the rights
of the passenger or the claimant otherwise available under
the Convention.

7. That this Agreement may be signed in any number of
counterparts, all of which shall constitute one Agreement.
Any carrier may become a party to this Agreement by
signing a counterpart hereof and depositing it with the
Director General of the International Air Transport
Association (LATA). .

8. That any carrier party hereto may withdraw from this
Agreement by giving twelve (12) months’ written notice of
withdrawal to the Director General of IATA and to the other
carriers parties to the Agreement.

Signed this day of 199

le
APPENDIX C

AGREEMENT ON MEASURES TO IMPLEMENT
THE IATA INTERCARRIER AGREEMENT

l.

I. Pursuant to the IATA Intercarrier Agreement of 31
October 1995, the undersigned carriers agree to
implement said Agreement by incorporating in their
conditions of carriage and tariffs, where necessary,
the following:

{CARRIER} shall not invoke the limitation
of liability in Article 22(1) of the Convention
as to any claim for recoverable compensatory
damages arising under Article 17 of the
Convention.

{CARRIER} shall not avail itself of any
defence under Article 20(1) of the
Convention with respect to that portion of
such claim which does not exceed 100,000
SDRs' [unless option II(2) is used].

Except as otherwise provided in paragraphs |
and 2 hereof, {CARRIER} reServes all
defences available under the Convention to
any such claim. With respect to third parties,
the carrier also reserves all rights of recourse
against any other person, including without
limitation, rights of contribution and

indemnity.

2c

Il. At the option of the carrier, its conditions of carriage
and tariffs also may include the following
provisions:

l.

{CARRIER} agrees that subject to applicable
law, recoverable compensatory damages for
such claims may be determined by reference
to the law of the domicile or permanent
residence of the passenger.

{CARRIER} shall not avail itself of any
defence under Article 20(1) of the
Convention with respect to that portion of
such claims which does not exceed 100,000
SDRs, except that such waiver is limited to
the amounts shown below for the routes
indicated, as may be authorised by
governments concerned with the
transportation involved.

{Amounts and routes to be inserted]

Neither the waiver of limits nor the waiver of
defences shall be applicable in respect of
claims made by public social insurance or
similar bodies however asserted. Such
claims shall be subject to the limit in Article
22(1) and to the defences under Article 20(1)
of the Convention. The carrier will
compensate the passenger or his dependents
for recoverable compensatory damages in
excess of payments received from any public
social insurance or similar body.

Bi Ps 2

Ill.

IV.

3¢
Furthermore, at the option of a carrier, additional
provisions may be included in its conditions of
carriage and tariffs, provided they are not
inconsistent with this Agreement and are in
accordance with applicable law.

Should any provision of this Agreement or a
provision incorporated in a condition of Carriage or
tariff pursuant to this Agreement be determined to be
invalid, illegal or unenforceable by a court of
competent jurisdiction, all other provisions shall
nevertheless remain valid, binding and effective.

l. This Agreement may be signed in any
number of counterparts, all of which shall
constitute one Agreement. Any carrier may
become Party to this Agreement by signing a
counterpart hereof and depositing it with the
Director General of the International Air
Transport Association (IATA).

2 Any carrier Party hereto may withdraw from
this Agreement by giving twelve (12)
months’ written notice of withdrawal to the
Director General of IATA and to the other
carriers Parties to the Agreement.

3. The Director General of IATA shall declare
this Agreement effective on November st,
1996 or such later date as all requisite
Government approvals have been obtained for
this Agreement and the IATA Intercarrier
Agreement of 31 October, 1995.

Signed this date of 1996.

ld
APPENDIX D

Signatories to IIA Agreement as of July 9, 1998
Aero Lingus plc

Aervias de México, S.A. de C.V. (Aeromexico)
Air Afrique

Air Aruba

Air Baltic Corporation SIA
Air Canada

Air Exel Commuter

Air France

Air Jamaica Limited

Air Mauritius

Air New Zealand

Air Pacific Limited

Air UK Group Limited

Air Vanuatu

Alaska Airlines

Alitalia

All Nippon Airways Co., Ltd.
Allegheny Airlines, Inc.
America West Airlines, Inc.
American Airlines
American Trans Air, Inc.
Asiana

Augsburg Airways GmbH
Austrian Airlines

Avianca

Azerbaijan Hava Yollary
Braathens S.A.F.E.

British Airways, plc

—— ee ee eee |

2d
Canadian Airlines, International
Cathay Pacific Airways, Ltd.
Central Mountain Air Ltd.
Cimber Air A/S
Compagnie Air France Europe
Continental Airlines, Inc.
Continental Express
Continental Micronesia
Croatia Airlines
Crossair
CSA - Czech Airlines
Delta Air Lines, Inc.
Deutsche BA Luftfahrtgesellschaft mbH
Deutsche Lufthansa AG
Egyptair
Emirates
Estonian Air
Eurowings Luftverkehrs AG
Finnair OY
Garuda Indonesia
GB Airways
Hawaiian Airlines
Heli Air AG
Heli-Linth AG
Iberia
Icelandair
Interimpex-A vioimpex
Japan Air Charter (JAZ)
Japan Air System Co. Ltd.
Japan Airlines Co. Ltd.
Japan Asia Airways (JAA)
Jet Airways (India) Pvt Ltd.

3d
Kenya Airways
Kiwi International Air Lines
KLM Cityhopper B.V.
KLM Royal Dutch Airlines
Korean Air Lines Co., Ltd.
LAPSA Lineas Aéreas Paraguayas
Lauda Air Luftfahrt AG
Luxair
Maersk Air A/S
Maersk Air Ltd.
Malaysia Airlines
Malev - Hungarian Airlines Public Ltd. Co.
Martinair Holland N.V.
Midwest Express Airlines, Inc.
Northwest Airlines
Pakistan International Airlines (PIA)
PGA Portugilia Airlines
Piedmont Airlines, inc.
Polskie Linie Lotnicze - Polish Airlines
PSA Airlines, Inc.
Qantas Airways Limited
Reeve Aleutian Airways, Inc.
Regional Airlines
Royal Air Maroc
SABENA
Saudi Arabian Airlines Corp.
Scandinavian Airlines Systems (SAS)
Singapore Airlines Ltd.
Sobelair
South African Airways
Swissair
TACA

4d
TAP Air Portugal
TAT European Airlines
Trans World Airlines Inc. (TWA)
Transavia airlines C.V.
Transbrasil S/A Linhas Aéreas
Trinidad & Tobago BWIA International
Tiirk Hava Yollari A.O. (Turkish Airlines Inc.)
Tyrolean Airways - Tiroler Luftfahrt -AG
United Airlines
UPS Airlines
USAir, Inc.
Varig S.A.
VIASA

Signatories to MIA Agreement as of July 9, 1998

Air Afrique

Air Baltic Corporation SIA
Air Canada

Air France

Air New Zealand

Air Pacific Limited

Alaska Airlines

Allegheny Airlines, Inc.
America West Airlines, Inc.
American Airlines
American Trans Air, Inc.
AMR Combs BJS, Inc.
AMR Eagle, Inc.

Asiana

Austrian Airlines

Avianca

British Airways, plc

Sd
Canadian Airlines, International
Cathay Pacific Airways, Ltd.
Central Mountain Air Ltd.
Compagnie Air France Europe
Continental Express
Continental Micronesia
Crossair
CSA - Czech Airlines
Delta Air Lines, Inc.
Deutsche BA Luftfahrtgesellschaft mbH
Deutsche Lufthansa AG
Estonian Air
Finnair OY
GB Airways
Heli Air AG
Heli-Linth AG
Icelandair
Kenya Airways
Kiwi International Air Lines
KLM Royal Dutch Airlines
Korean Air Lines Co., Ltd.

6d
Qantas Airways Limited
Reeve Aleutian Airways, Inc.
Royal Air Maroc
SABENA
Scandinavian Airlines Systems (SAS)
Singapore Airlines Ltd.
Sobelair
Swissair
TAP Air Portugal
TAT European Airlines
Trans World Airlines Inc. (TWA)
Transavia Airlines C.V.
Transbrasil S/A Linhas Aéreas
Tiirk Hava Yollari A.O. (Turkish Airlines Inc.)
Tyrolean Airways - Tiroler Luftfahrt -AG
United Airlines
UPS Airlines
USAir, Inc.
Varig S.A.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0124%3A19. Public record. Not legal advice.