Petition for Writ of Certiorari — Japan Air Lines Co. v. Abramson

84-939 :

Office - supreme Court, US

i DEC 12 i090

Lad ® STEVAS

_ bE 2K

IN THE pe

Supreme Court of the United States

OctoBer Term, 1984

Japan Arr Lines Co., Lep.,

Petitioner,

v.

StanLey ABRAMSON,

Respondent.

—————— ———

em ——

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Georce N. Tompkins, Jr.

Counsel for Petitioner

Japan Air Lines Co., Ltd.

1251 Avenue of the Americas

New York, New York 10020

(212) 757-6870

pee

Questions Presented

Some or all of the questions presented by this Petition

may be addressed by the Court when deciding Saks v. Air

France, 724 F.2d 1383 (9th Cir.), cert. granted,

U.S. ——, 105 S.Ct. 80 (U.S. Oct. 1, 1984) (No. 83-1785),

although not specifically set forth in the Air France Peti-

tion.

1. Does the Warsaw Convention apply whenever the trans-

portation is “international” as provided in Article 1 or

is it the occurrence of an ‘accident” within the meaning

of Article 17 that determines when the provisions of

the Warsaw Coivention apply to a claim for damages

by a passenger?

2. Is the cause of action provided to passengers by Article

17 of the Warsaw Convention exclusive and preemptive

of all common law or other causes of action for per-

sonal injury where the Warsaw Convention applies to

the transportation?

3. Where it is determined that the “bodily injury” for

which damages are claimed by a passenger was due to

a pre-existing natural ailment and was not due to an

“accident” within the meaning of Article 17 of the

Warsaw Convention, may the passenger nevertheless:

(a) pursue other causes of action against the air

carrier ;

(b) and, if so, without being subject to the limita-

tion on recoverable damages provided by the War-

saw Convention as supplemented by the Montreal

Agreement?

TABLE OF CONTENTS

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TsaBLE oF AUTHORITIES

Cases: PAGE

Abramson v. Japan Air Lines Co., Ltd., 587 F. Supp.

1099 (D.N.J. 1983), af’d m part and rev'd in part,

AR) an ae 1,2

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

(2d Cir. 1978), cert. denied, 439 U.S. 1114 (1979) ....5, dn, $

Block v. Compagnie Nationale Air France, 386 F.2d 323

(5th Cir. 1967), cert. denied, 392 U.S. 905 (1968) ...... 8

Boehringer-Mannheim Diagnostics, Inc. vy. Pan Ameri-

can World Airways, Inc., 737 F.2d 456 (5th Cir.),

appeal docketed, No. 84-804 (U.S. Nov. 16, 1984) _... 5,8

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

702 (S.D.N.Y. 1972), aff’d, 485 F.2d 1240 (1973) _...5, dn

In Re Aircrash in Bali, Indonesia on April 22, 1974, 684

| 5,9

In Re Mexico City Air Crash of October 31, 1979, 708

F.2d 400 (9th Cir. 1983) .............2.......... ia hdphdnascatins 5, 9, 10

Komlos v. Compagnie Nationale Air France, 111 F.

Supp. 393 (S.D.N.Y. 1952), rev’d, 209 F.2d 436 (2d

a EI EERE ce dn

Lautore vy. United Airlines, Inc., 16 Av. Cas. (CCH)

17,944 (S.D.N.Y. 1981), aff'd mem., 688 F.2d 816 (2d

Tee ckieteniecernunsnicunapn 8

Noel v. Linea Aeropostal Venezolana, 247 F.2d G77 (2d

Cir.), cert. dented, 355 U.S. 907 (1957) .......00.200..... dn

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

I alc ccchsnncbaannesonnncaely Oy Oy LO

Saks v. Air France, 724 F.2d 1383 (9th Cir.), cert.

granted, - U.S. ——, 105 S.Ct. 80 (U.S. Oct. 1,

Teens scccaiewacsebnvcntemsnccrenese i

iv

PAGE

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

464 U.S. ——, 104 S.Ct. 1776 (1984) oo. 11

Upton v. Iran National Airlines Corp., 450 F. Supp.

176 (S.D.N.Y. 1978), aff'd mem., 603 F.2d 215 (2d

2 Ne BRAT UCN Me EEOC T ERI ere tee TREAD, 8

Statutes and Other Authorities:

Agreement CAB 18900, approved by CAB Order E-

23680, 31 Fed. Reg. 7302 (1966) W000. 2n

Convention for the Unification of Certain Rules Re-

lating to International Transportation by Air, Oc-

tober 12, 1929. 49 Stat. 3000 (1934), T.S. No. 876;

137 L.N.T.S. 11, reprinted in 49 U.S.C. §1502 note

i, ge Ea lin Airs Be et ea OR AEN OMB ARMS passim

Or. CR ok 2

Ua: Coo 3n

IN THE

Supreme Court of the United States

Ocroper TrerRM, 1984

JAPAN Arr Lines Co., Ltp.,

Petitioner,

Va

STANLEY ABRAMSON,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Petitioner Japan Air Lines Co., Ltd. (hereinafter JAL)!

prays that a writ of certiorari issue to review the judgment

of the United States Court of Appeals for the Third Cir-

cuit entered in this case on September 14, 1984.

Opinions Below

The opinion of the United States Court of Appeals for

the Third Cireuit is reported at 739 F.2d 130 (3d Ci.

1 Pursuant to Rule 28.1 of the Supreme Court Rules, Petitioner

states that it has the following subsidiaries: Hotel Nikko Saipan,

Ine.; JAL Card Co., Ltd.; Airport Ground Service Co., Ltd.;

Nikko Trading Co., Ltd.; Hotel Nikko Annupuri Co., Ltd.; Japan

Air Lines Development Co., Ltd.; Airport Motor Service Co., Ltd. ;

JAL Maintenance Service Co., Ltd.; JAL Creative Systems Co..

Ltd.; Japan Air Lines Hotel Co., Ltd.; International In-Flight

Catering Company; Japan Aireraft Paint Co., Ltd.; Airport

Ground Power Co., Ltd.; Southwest Airlines Co., Ltd.; Japan

Creative Tours Co., Ltd.; and Osaka Airport Transport Co., Ltd.

2

1984) and is printed in the Appendix to this Petition at

pages la-10a. The opinion of the United States District

Court for the District of New Jersey is reported at 587

F. Supp. 1099 (D.N.J. 1983) and is printed in the Appen-

dix at pages 1la-21a.

Jurisdiction

The judgment of the United States Court of Appeals

for the Third Cireuit was entered on July 19, 1984. A

timely Petition for Rehearing was denied by Order of the

Court of Appeals entered on September 14, 1984.° The

jurisdiction of the Court is invoked under 28 U.S.C.

§1254(1).

Treaty Involved

This case involves the Convention for the Unification of

Certain Rules Relating to International Transportation by

Air, October 12, 1929. 49 Stat. 3000 (1934), T.S. No. 876,

137 L.N.T.S. 11, reprinted in 49 U.S.C. §1502 note (1°70)

(hereinafter referred to as the Warsaw Convention or

simply the Convention).®

The pertinent provisions of the Warsaw Convention are

printed in the Appendix at pages 25a-3la.

2 See the Appendix hereto at page 24a.

> Also involved is a 1966 intercarrier agreement, commonly re-

ferred to as the Mentreal Agreement. Agreement CAB 18900,

approved by CAB Order E-23680, 31 Fed. Reg. 7302 (1966). The

Montreal Agreement supplements certain provisions of the Warsaw

Convention, including the limitation of liability in Article 22

thereof. The full text of the Montreal Agreement and the CAB

Order approving same are printed in the Appendix at 32a-39a.

3

Statement of the Case

This is an action* for personal injuries allegedly sus-

tained by respondent Stanley Abramson while a passenger

on board JAL fiight No. 005 from New York to Tokyo

on August 23, 1982. At the time Mr. Abramson boarded

the JAL flight he suffered from a pre-existing medical

condition diagnosed as a paraesophageal hiatal hernia.

The condition periodically manifested itself by severe

attacks.

Mr. Abramson experienced another attack of his condi-

tion during the flight. He aileges that his wife requested

that JAL provide him with a place to lhe down so that

he could employ a “self-help” remedy to alleviate the

attack. The crux of Mr. Abramson’s complaint is that a

JAL stewardess informed him that there was no space

available on the aireraft to lie down even though there

were empty seats in the first class section. He alleges that

he was therefore unable to alleviate his attack which ag-

gravated his hiatal hernia condition.

It is undisputed that Mr. Abramson’s passenger ticket,

pursuant to which he was travelling on the JAL flight,

provided for “international transportation” within the

meaning of Article 1(2) of the Warsaw Convention. The

circumstances under which a carrier may be liable to its

passengers for damages as the result of bodily injury sus-

tained during the course of international transportation

are specified in Article 17 of the Warsaw Convention,

which creates the cause of action for such injury “if the

accident which caused the damage so sustained took place

on board the aircraft...” App. 26a.

* Respondent commenced this action in the Superior Court in

and for the County of Essex, New Jersey. The action was timely

removed to the United States District Court for the District of

New Jersey where jurisdiction was predicated on ‘liversity of

citizenship pursuant to 28 U.S.C. §1332.

4

Prior to trial, JAL moved for summary judgment dis-

missing the complaint. In granting JAL’s motion, the Dis-

trict Court found that the alleged aggravation of Mr.

Abramson’s hiatal hernia condition was not an “accident”

within the meaning of Article 17 of the Convention and,

consequently, held that JAL was not liable for his alleged

injuries. The District Court premised its decision on the

cor ct finding that the absence of an “accident” precludes

liability regardless of how an action is founded or de-

nominated, provided that the action is for bodily injury

sustained on board the aircraft during “international trans-

portation”. App. 1la-17a.

The Court of Appeals correctly affirmed the District

Court’s finding that Mr. Abramson’s attack was not an

“accident” within the meaning of Article 17 of the Con-

vention but erroneously held that the absence of an “ac-

cident” precluded the application of any of the other pro-

visions of the Warsaw Convention to respondent’s claims.

The Court of Appeals reinstated respondent’s common law

claims against JAL and remanded the action to the Dis-

trict Court for further proceedings holding that “since

these claims are based on loeal law, it follows that the

Convention’s $75,000 limit [is] inapplicable.” App. 10a.

The Court of Appeals premised its decision on the mis-

apprehension that the occurrence of an “accident” is the

condition precedent to the application of the Warsaw Con-

vention to a personal injury claim arising during interna-

tional transportation. The decision represents the first

time that any court in the United States has held the

Warsaw Convention inapplicable to an action against an

air carrier for “bodily injury” sustained by a passenger

“on board the aireraft” where the relevant passenger ticket

provides for “international transportation” as defined in

Article 1(2) of the Warsaw Convention.

In rendering its deeision the Court of Appeals erro-

neously relied upon laiguage of the District Court opin-

-

5

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

702, 706 (S.D.N.Y. 1972), aff’d, 485 F.2d 1240 (2d Cir. 1973),

to the effect that the Warsaw Convention does not ex-

clusively regulate the relationship between passenger and

carrier in international transportation. The Husserl case,

however, effectively was overruled with respect to the ex-

clusivity issue by Benjamins v. British European Airways,

572 F.2d 913 (2d Cir. 1978), cert. denied, 489 U.S. 1114

(1979), which held that the Warsaw Convention creates

the exclusive cause of action for personal injuries inelud-

ing death sustained during international transportation.®

By disregarding the mandatory nature of Article 1 and

holding that the occurrence of an “accident” is the condi-

tion precedent to the applicability of the Convention’s pro-

visions to a personal injury claim arising during interna-

tional transportation, the Court of Appeals for the Third

Circuit is in direct conflict with decisions of other Circuits

which hold that the causes of action provided by the War-

saw Convention are exclusive. See Boehringer-Mannheim

Diagnostics, Inc. v. Pan American World Airways, Inc.,

737 F.2d 456 (Sth Cir.), appeal docketed, No. 84-807 (U.S.

Nov. 16, 1984); Benjamins v. British European Airways,

572 F.2d 913 (2d Cir. 1978), vert. dented, 489 U.S. 1114

(1979) ; Reed v. Wiser, 855 F.2d 1079 (2d Cir.), cert. denied,

434 U.S. 922 (1977). See also In Re Mexico City Air Crash

of Ociober 31, 1979, T08 F.2d 400, 414 (9th Cir. 1983) ;

In Re Aircrash in Balt, Indonesia on April 22, 1974, 684

F.2d 1201, 1311 (9th Cir. 1982).

5 Benjamins expressly overruled Noel v. Linea Aeropostal Vene-

zolana, 247 F.2d 677 (2d Cir.), cert. denied, 355 U.S. 907 (1957)

and Komlos v. Compagnie Nationale Air France, 111 F. Supp. 393

(S.D.N.Y. 1952), rev’d, 209 F.2d 436 (2d Cir. 1953), both of which

were relied upon by the Husserl Court to support its decision. 572

F.2d at 919.

6

REASONS FOR GRANTING THE WRIT

Certiorari should be granted to resolve a direct conflict

among the Cireuit Courts of Appeals on the exelusivity

of the rights and remedies provided to a passenger for

bodily injury occurring during the course of “international

transportation” as defined in the \Varsaw Convention. This

conflict arises from differing interpretations of Article 17

of the Warsaw Convention by the Cireuit Courts of

Appeals.

In this case, the Court of Appeals for the Third Cireuit

held correctly that the recurrence of » pre-existing natural

ailment (hiatal hernia) is not a “bodily injury” caused by

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

Warsaw Convention. However, the Court of Appeals also

held, erroneously, that while respondent had no claim for

damages pursuant to Article 17 of the Warsaw Convention,

he nevertheless may pursue his claim for damages on other

theories of recovery based upon local law and his claim will

not be subject to the $75,000 limitation of liability provided

by Article 22 of the Warsaw Convention as supplemented

by the Montreal Agreement.

The basic error of the Court below in reaching this

holding was in determining that if there is no “accident”

within the meaning of Article 17 of the Warsaw Convention,

none of the provisions of the Warsaw Convention applies

to the claim for damages. The application of the Warsaw

Convention depends, however, upon the nature of the trans-

portation involved and not upon the oeeurrence of an “ac-

cident” within the meaning of Article 17. This is mani-

festly clear from the plain language of Article 1 of the

Warsaw Convention which states:

(1) This convention shall apply to all international

transportation of persons, baggage, or goods performed

by aircraft for hire.

49 Stat. 3014.

————

7

“International transportation” is defined in Article 1(2)

to 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 Con-

tracting 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.

49 Stat. 3014.

In holding that respondent’s claim for bodily injury is

not governed exclusively by the provisions of the Warsaw

Convention, the Court of Appeals for the Third Circuit

has placed itself in direct conflict with prior decisions of

the Courts of Appeals for the Seeond and Fifth Cireuits,

although apparently in agreement with the Court of the

Appeals for the Ninth Cireuit.

In Reed v. Wiser, 555 F.2d 079 (2d Cir.), cert. denied,

434 U.S. 922 (1977), the Court of Appeals for the Second

Cireuit held that the provisions of the Warsaw Conven-

tion, when applicable, apply to employees of an air carrier

in the same manner as they apply to the air carrier. In so

holding, the Second Circuit recognized that the signatories

to the Warsaw Convention clearly intended “to establish

a uniform body of world-wide liability rules to govern in-

ternational aviation, which would supersede with respect

to international flights the scores of differing domestic

laws, leaving the latter applicable only to the internal

flights of each of the countries involved”. 555 F.2d at 1090.

Thus, to permit plaintiffs to sue airline employees for

damages ontside the parameters of the Warsaw Conven-

tion would thwart the fundamental purposes of the War-

saw Convention. As the Second Cireuit stated:

8

If this method of circumventing the Convention’s lia-

bility limitation is accepted, not only will the purpose

of defining the limits of the carrier’s obligations be

circumvented, but in the process the Convention’s most

fundamental objective of providing a uniform system

of liability and litigation rules for international air

disasters will be abandoned as well. It is difficult to

imagine an interpretation more at odds with the ae-

knowledged purposes of the Convention than tha‘ for

which appellees press.

555 F.2d 1092.

In Benjamins vy. British Luropean Airways, 572 F.2d

913 (2d Cir. 1978), cert. denied, 439 U.S. 1114 (1979), the

Court of Appeals for the Second Cireuit held that Article

17 creates the cause of action for wrongful death and that

it is “the universal source of a right of action” to the

exclusion of any liability under any statute or common

law. 572 F.2d at 918-9.

It is the established rule in the Second Cirenit that the

Warsaw Convention exclusively governs claims for injuries

sustained during international air transportation as de-

fined in the Convention. See Reed v. Wiser, 555 F.2d 1079,

1090 (2d Cir.), cert. denied, 434 U.S. 922 (1977); Lautore

v. United Airlines, Inc., 16 Av. Cas. (CCH) 17,944 (S.D.

N.Y. 1981), aff'd mem., 688 F.2d 816 (2d Cir. 1982); Upton

v. Iran National Airlines Corp., 450 F. Supp. 176, 178

(S.D.N.Y. 1978), aff’d mem., 603 F.2d 215 (2d Cir. 1979).

The Court of Appeals for the Fifth Cireuit recently has

held “that the Warsaw Convention creates the cause of

action and is the exclusive remedy,” preempting state law

in the areas governed by the Warsaw Convention. Boeh-

ringer-Mannheim Diagnostics, Inc. v. Pan American World

Airways, Inc., 737 F.2d 456, 458 (Sth Cir.), appeal docketed,

No. 84-807 (U.S. Nov. 16, 1984). See also Block vy. Com-

pagnie Nationale Air France, 386 F.2d 323 ( oth Cir. 1967),

cert. denied, 292 U.S. 905 (1968).

9

The Ninth Cireuit, while agreeing with the Second and

Fifth Cireuits that the Warsaw Convention creates the

cause of action, does not appear to regard the Warsaw

Convention cause of action as being exclusive to all other

remedies available under state or local law. See In Re

Mexico City Air Crash of October 31, 1979, 708 F.2d 400,

414 n.25 (9th Cir. 1983); In Re Aircrash in Bali, Indonesia

on April 22, 1974, 684 F.2d 1301, 1311 n.8 (9th Cir. 1982).

In direct conflict with the Third Circuit’s holding in this

case, however, the Ninth Cireuit has held that state law

is preempted by the Warsaw Convention to the extent

that state law would prevent the application of the Con-

vention’s limitation of liability. In Re Aircrash in Bali,

Indonesia on April 22, 1974, 684 F.2d 1301, 1308 (9th Cir.

1982).

The exclusivity of the cause of action provided to pas-

sengers by the Warsaw Convention is clear from the lan-

guage of the Convention itself. Thus, Article 24 states

thai:

(1) In the eases covered by articles 18 and 19

[eargo, baggage and delay] 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 [damages

for “death or wounding ... or any other bodily in-

jury”] the provisions of the preceding paragraph shall

also apply, without prejudice to the questions as to

who are the persons who have the right to bring suit

and what are their respective rights.

49 Stat. 3020 (emphasis added).

In addition to creating the cause of action in Article 17,

the Warsaw Convention also establishes uniform rules re-

lating to presumption of liability (Articles 17, 18, 19 and

26), standards of liability (Articles 20 and 25), burden

of proof (Article 20), limitations of liability (Article 22),

10

contractual limitations of liability (Article 23), actions

against the estate of the tortfeasor (Article 27), jurisdic-

tion (Article 28), statute of limitations (Article 29) and

liability where more than one carrier is involved in the

transportation (Article 30). App. 26a-3la. See In Re

Mexico City Aircrash of October 31, 1979, 708 F.2d 400,

412-14 (9th Cir. 1983). The natural consequence of the

Third Circuit’s decision in the instant case would be the

abrogation of these uniform rules in the absence of a find-

ing that an “accident” occurred within the meaning of

Article 17.

Where the signatories to the Convention intended that

domestic law apply to a particular matter, the rules of

the Convention expressly so state: Article 21 (contribu-

tory negligence), Article 24(2) (standing of and allocation

among survivors), Article 25 (fault equivalent to wilful

misconduct or dol), Article 28 (procedure) and Article 29

(running of the statute of limitations). App. 27a-31a.

No provision of the Warsaw Convention reserves to pas-

sengers any right of action based upon any domestic or

local law where the provisions of the Warsaw Convention

apply to the transportation during the course of which it

is claimed “bodily injury” occurred and fur which damages

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

denied, 434 U.S. 922 (1977).

The correct interpretation and the one which is con-

sistent with the intention of the signatories and the ob-

jectives of the Convention is that the provisions of the

Convention apply exclusively whenever the claim for dam-

ages is based upon a “bodily injury” alleged to have been

sustained during the course of “international transporta-

tion” within the scope of Article 1 of the Convention. In

holding that the Warsaw Conveution does not apply where

there is no “accident” within the meaning of Article 17,

the Court of Appeals for the Third Cireuit has made a

basie error which must be corrected. Otherwise, the entire

11

basis for the application of the provisions of the Warsaw

Convention to claims for damages arising from interna-

tional transportation will be altered, contrary to the ex-

press intent of the signatories to the Convention. Thus, the

very universal, world-wide and exclusive application of

the provisions of the Convention conceived and intended

by its drafters and signatories will be destroyed and the

morass of complex and conflicting domestic laws sought

to be avoided by the Convention will be reinstated.

Recently, while affirming the judgment of the Court of

Appeals for the Second Circuit, the Court corrected an

erroneous interpretation of the Warsaw Convention in or-

der to ensure the implementation of the purposes of the

Convention, the understanding of its signatories and its

international implementation since 1929. Trans World Air-

lines, Inc. v. Franklin Mint Corp., 464 U.S. ——, 104 S.Ct.

1776 (1984). This case calls as well for the Court to correct

an incorrect interpretation by the court below of the same

Convention in order to preserve, from the viewpoint of

the United States, the same objectives.

The question of the exclusivity of the cause of action

created by Article 17 of the Warsaw Convention should

be decided by the Court in order to resolve the conflict

between the Circuit Courts of Appeals on this question

and to ensure the continued vitality of the application of

the uniform world-wide liability rules established by the

Warsaw Convention to the exclusion of all domestic laws

dealing with such matters. If upheld, the decision of the

Court of Appeals for the Third Circuit will serve to defeat

this underlying purpose of the Warsaw Convention.

12

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

Grorce N. Tompkins, Jr.

Counsel for Petitioner

Japan Air Lines Co., Ltd.

1251 Avenue of the Americas

New York, New York 10020

(212) 757-6870

Of Counsel:

Convnon & ForsytH

Desmonp T. Barry, JR.

Evcene MassaMILLo

New York, New York

December 12, 1984

13

Certificate of Service

I hereby certify that I have, this 12th day of December,

1984 served the foregoing Petition for a Writ of Certiorari

upon respondent by depositing same in a United States

mail box at 1251 Avenue of the Americas, New York, New

York 10020 with first class postage prepaid, addressed to

Peckar & Abramson, counsel of record for respondent, at

their respective post office address, 223 Moore Street,

Hackensack, New Jersey 07601.

December 12, 1984

/s/ Grorce N. Tompkins, Jr.

George N. Tompkins, Jr.

Counsel for Petitioner

APPENDIX

Table of Contents to Appendix

PAGE

Opinion of Court of Appeals ~............0...2.2.2222.2......-- la

Opinion of District Court 2.2.2 lla

Memorandum and Order of District Court dated

IN ts HII si vecschlecasuisnckacssicsactinisbnilonndnncinnhuspienensotense 18a

Memorandum of District Court dated September

aaa an acdc aha peaeahigaecuinlesitill 21a

Judgment of Court of Appeals ~............0..2.002..0....... 22a

Order Denying Petition for Rehearing .................. 24a

Convention for the Unification of Certain Rules

Relating to International Transportation by Air,

October 12, 1929. 49 Stat. 3000 (1934), T.S. No.

876, 137 L.N.T.S. 11, reprinted in 49 U.S.C. §1502

I Neti ica sic neacighcdabnashggsipnnnseienoctanelabentntads 25a

CAB Order B-23680, 31 Fed. Reg. 7302 (1966) .... 32a

Agreement CAB 16000 .......................c.cceecssceccsncnesesenes 36a

Opinion of Court of Appeals

IN THE

UNITED STATES COURT OF APPEALS

For tHE Turrp Crirocurr

Docket No. 83-5750

STANLEY ABRAMSON,

Plaintiff-A ppellant,

vs.

Japan Arr Lines, Co., Lrp.,

Defendant-A ppellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

Submitted May 22, 1984

Decided July 19, 1984

OPINION

Before: GartuH and Suovitrer, Circuit Judges, and NEAHER,

District Judge (Hon. Edward R. Neaher, United

States District Court for the Eastern District of

New York, sitting by designation).

Suoviter, Circuit Judge.

I.

Facts and Procedural History

Stanley Abramson, plaintiff in the district court, appeais

from the entry of summary judgment for the defendant,

la

2a

Opinion of Court of Appeals

Japan Air Lines Co., Ltd. (JAL). The relevant facts are

not disputed for purposes of the appeal.

On August 23, 1982, Abramson and his wife were pas-

sengers on JAL flight No. 005 from New York to Tokyo,

Japan, with an intermediate stop in Anchorage, Alaska.

Shortly after take-off from Anchorage to Tokyo, Abram-

son suffered an attack from a pre-existing paraesophageal

hiatal hernia. Abramson had been under medical care for

this condition for approximately six years, but he did not

inform JAL of this condition before the flight. Abramson

had been hospitalized in June of the preceding year with

internal bleeding, and surgery on an elective basis had

been recommended to alleviate the condition.

According to Abramson, he can alleviate an attack by

a “self-help” remedy of lying down, massaging his stomach

from side to side, and, on occasion, by self-induced vomiting.

Abramson’s wife testified that she asked a JAL stewardess

for a place where he could lie down and employ his “self-

help” remedy, but was advised there were no empty seats.

Discovery revealed, however, that there were nine empty

seats in the first class section.

Plaintiff alleges that without the opportunity to employ

“self-help”, his condition worsened and he was hospitalized

upon arriving in Tokyo. Subsequently, he contracted pneu-

monia and, on the advice of a Japanese physician, returned

immediately to the United States where he underwen:

surgery to correct his hernia condition.

Plaintiff's complaint, filed in New Jersey state court

and removed to federal court by the defendant, alleged

in Count I that the negligent conduct of JAL and its em-

ployees aggravated his hiatal hernia. Abramson relies on

the statement of a physician that had Abramson been able

to employ his “self-help” remedy it would have been sue-

cessful and would have prevented the pneumonia and ob-

viated the need for immediate surgery. In Count I, plain-

tiff alleged that under the terms of the Warsaw Convention

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Opinion of Court of Appeals

and the Montreal Agreement JAL is liable without proof

of fault. In Count III, plaintiff alleged that the willful

misconduct of JAL and its employees caused his injuries,

entitling him to punitive damages.

The district court entered summary judgment for the

defendant. The district court held there was no genuine

issue of material fact with respect to the Warsaw Conven-

tion claim. It ruled that Article 17 of the Convention

creates a cause of action only for injuries proximately

caused by some “accidcut” on board the plane, and on

the basis of the facts preseuted there was no “accident”.

The court did not consider whether there was a genuine

issue of material fact with respect to Abramson’s state

law claims, because it held that “[t]he absence of an ‘ac-

cident’ precludes liability, both compensatory and punitive,”

under the state law negligence and willful misconduct

claims. App. at 236a.’

On appeal, Abramson argues that the incident alleged

constitutes an “accident” under the Warsaw Convention,

1The district court’s order granting summary judgment was

entered September 26, 1983 before plaintiffs papers in opposition

were filed. Apparently the district court was unaware the parties

had stipulated to adjourn the return date of the motion to October

11, 1983. The court treated plaintiffs subsequent explanation letter

as a motion to alter or amend the judgment, and denied the motion

on October 11, 1983. In its memorandum accompanying that order,

the court referred to the documents filed by Abramson in opposi-

tion to summary judgment, and stated that “[hjad all these

materials been submitted in time for consideration before the court

ruled on the motion, they would have failed to raise a genuine issue

of material fact since they provide no fact basis on which a finding

of an ‘accident’ could be predicated.” App. at 240a. Appellant filed

a timely notice of appeal from both district court orders.

We do not condone what appears to have been the parties’ ‘n-

formal procedure for adjournment without approval by the dis-

trict court. However, since the district court considered and treated

the arguably late documents as part of the summary judgment

record, and since we agree with the district court that they would

not alter the result, we consider this appeal on the full record

before the district court.

4a

Opinion of Court of Appeals

and that the district court erred in holding that the Warsaw

Convention precludes alternative bases for recovery in the

absence of an accident.

Il.

Applicability of the Warsaw Convention

The parties are in agreement that the flight in question

was in international transportation. The circumstances

under which a carrier may be liable to its passengers in

international transportation are specified in Article 17 of

the Warsaw Convention, a treaty of the United States:

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.

49 Stat. 3018 (emphasis added).’ The district court gave

summary judgment on the Warsaw Convention claim. It

found: “Nothing in [the deposition testimony] so much

as remotely suggests the occurrence on the flight of any

event that could rationally be regarded as an ‘accident’

from which plaintiff’s claimed injury resulted.” App. at

240a.

The Warsaw Convention does not itself define the term

“accident”. This court addressed the definition of “acci-

dent” within the meaning of Article 17 of the Warsaw

Convention in DeMarines v. KLM Royal Dutch Airlines,

580 F.2d 1193 (3d Cir. 1978). We held that the district

?The Warsaw Convention is the popularly used name for the

Convention for the Clarification of Certain Rules Relating to

International Transportation by Air, adhered to by the United

States June 27, 1934, 49 Stat. 3018, TS No. 876, as modified by the

Montreal Agreement, 49 U.S.C. § 1502.

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Opinion of Court of Appeals

court’s charge to the jury as follows presented the correct

legal standard for determining the occurrence of an acci-

dent:

An accident is an eveut, a physical circumstance, which

unexpectedly takes place not according to the usual

course of things. If the event on board an airplane is

an ordinary, expected, and usual occurrence, then it

cannot be termed an accident. To constitute an acci-

dent, the occurrence on board the aircraft must be

unusual, or unexpected, au unusual or unexpected hap-

pening.

Id. at 1196. Accord Warshaw v. Trans World Airlines, 442

F. Supp. 400 (E.D. Pa. 1977).

Abramson argues that although JAL did not cause his

hiatal hernia injury, the alleged aggravation of the injury

by JAL’s acts and omissions constituted an “unusual or

unexpected happening within the definition of DeMarimes.

He attempts to analogize JAL’s refusal to aid him as an

unusual occurrence tantamount to other occurrences treated

as “accidents”, such as the following: terrorist attacks,

Evangelinos v. Trans World Airlines, 550 F.2d 152 (3d

Cir. 1977) (in banc); hijackings, Krystal v. British Over-

seas Airways Corp., 403 F. Supp. 1322, 1323 (C.D. Cal.

1975) ; and bombings, Reed v. Wiser, 555 F.2d 1079 (2d Cir.

1977), cert. denied, 434 U.S. 922 (1977).

We are not persuaded that the situations are analogous.

In none of those cases was the injury suffered during the

course of a routine and normal flight, as here. In the ab-

sence of proof of abnormal external factors, aggravation

of a pre-existing injury during the course of a routine and

normal flight procedure). See also MacDonald vy. Air

the meaning of Article 17. See Warshaw vy. Trans World

Airlines, 442 F. Supp. at 413 (no “accident” where plain-

tiff’s respiratory infection became aggravated during the

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Opinion of Court of Appeals

flight, resulting in permanent hearing loss in one ear, be-

cause of a change in cabin pressure which is part of the

normal flight should not be considered an “accident” within

Canada, 439 F.2d 1402, 1405 (1st Cir. 1971) (plaintiff’s

fall while standing in baggage claim area was not an “ac-

cident” because it was equally reasonable to suppose that

some internal condition was the cause of the fall).

Nor do we find any support for Abramson in the Ninth

Circuit’s recent position, which conflicts with DeMarines

and Warshaw, that hearing loss resulting from cabin de-

pressurization is within the Warsaw Convention because

it is an injury “proximately caused by the risks inherent

in air travel,” Saks v. Air France, 724 F.2d 1383, 1384 (9th

Cir. 1984). The injury Abramson suffered, unlike a hear-

ing loss from cabin depressurization, is not a risk either

associated with or inherent in aircraft operation. In any

event, we are bound by this court’s legal interpretation in

DeMarines.

In DeMarines, we expressed “grave doubts” that a find-

ing that an accident occurred would have been legally sup-

portable when ‘he evidence at most supported a finding

that pressure change during the flight caused plaintiff's

injury “[a]bsent testimony indicating that the plane’s

cabin pressure change was the result of some ‘unusual or

unexpected happening’”. 580 F.2d at 1197-98. This case

presents an even more attenuated claim.

_ We agree with the district court that the alleged acts

and omissions of JAL and its employees during the routine

flight on which Abramson was a passenger do not consti-

tute an “accident” for which the Warsaw Convention im-

poses liability on the carrier. Thus, judgment for defen-

dant on the Warsaw Convention claim was properly en-

tered.

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Opinion of Court of Appeals

II.

Exclusivity of the Warsaw Convention

The district court failed to reach Abramson’s negligence

and willful misconduct claims under the apparent belief

that these claims were precluded by the Convention’s ex-

clusivity of remedy. The district court held:

The allegations of negligence, or of willful failure,

ete., add nothing to the claim, the first because liability,

when it exists, arises without regard to negligence and

the second because it had meaning only to support

punitive damages, which are not recoverable unless

there is a right to recover compensatory damages. The

absence of an “accident” precludes liability, both com-

pensatory and punitive.

App. at 236a.

JAL argues that “the express language of Article 24 of

the Warsaw Convention establishes that its terms exclu-

sively govern this action against JAL.” Brief for Appellee

at 13. We do not read the provision that way. Article 24

states:

(1) In the cases covered by articles 18 and 19 [cargo,

baggage and delay] 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 [bodily injury]

the provision of the preceding paragraph shall also

apply, without prejudice to the questions as to who

are the persons who have the right to bring suit and

what are their respective rights.

49 Stat. at 3020, reprinted in 49 U.S.C.A. § 1502 (emphasis

added). Since we have already concluded that Abramson’s

injury was not covered by Article 17 because there was no

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Opinion of Court of Appeals

“accident”, Article 24(2) does not by its express terms

limit maintenance of actions brought under local law.

All the other courts considering this issue have similarly

concluded that the Warsaw Convention’s limitation and

theory of liability is exclusive when it applies (1.e., when

there is an accident), but it does not preclude alternative

theories of recovery. Instead, as the court said in Husserl

v. Swiss Air Transport Co., 351 F. Supp. 702 (S.D.N.Y.

1972), aff'd, 485 F.2d 1240 (2d Cir. 1973), where plaintiff

filed claims under the Warsaw Convention and for breach

of contract of safe carriage and negligence:

[T]he Convention does not “exclusively regulate” the

relationship between passengers and carrier on an in-

ternational flight, but rather sets limits on and renders

uniform certain of the aspects of that relationship... .

Thus, it would seem to follow that if the Convention

“applies”, it applies to limit—not eliminate—liability ;

if it does not apply, it leaves liability to be established

according to traditional common law rules.

351 F. Supp. at 706 (emphasis added). In a later proceed-

ing in the same case, the court again reviewed the ques-

tion whether the Warsaw Convention remedies were both

exclusive and preclusive and concluded that injuries which

are not covered by the scope of Article 17 of the Conven-

tion “may give rise to causes of action not subject to any

of the conditions or limits of the Warsaw system.” Husserl

v. Swiss Air Transport Co., 388 F. Supp. 1238, 1246 (S.D.

N.Y. 1975).

Other courts, after finding the Warsaw Convention in-

applicable, have permitted maintenance of claims brought

on other grounds. See Schmidkunz v. Scandinavian Air-

lines System, 628 F.2d 1205, 1207 (9th Cir. 1980) (reaching

plaintiff’s negligence claim after disposing of her Warsaw

Convention claim) ; Martinez Hernandez vy. Air France, 545

9a

Opinion of Court of Appeals

F.2d 279, 284 (1st Cir. 1976) (holding that a passenger

injured after disembarkation, when Article 17 is inappli-

cable, is left “to remedies of local law’), cert. denied, 430

U.S. 950 (1977) ; Hill v. United Airlines, 550 F. Supp. 1048,

1054 (D. Kan. 1982) (holding “we find nothing in the

Warsaw Convention to bar a lawsuit for damages as a

result of the alleged intentional tort”). See also In re Air-

crash m Bali, Indonesia, 684 F.2d 1301, 1311 n.8 (9th Cir.

1982) (Warsaw Convention “has never been read to limit

plaintiffs to a cause of action arising thereunder, but rather

to limit the recovery in suits for injury”).

The cases cited by JAL to support its argument for

exclusivity are not to the contrary. They merely hold that

where the Warsaw Convention applies it is exclusive. See

Molitch v. Irish International Airlines, 436 F.2d 42, 43-44

(2d Cir. 1970); Block v. Compagnie Nationale Air France,

386 F.2d 323, 326 (Sth Cir. 1967). JAL also relies on the

court’s statement in In re Air Crash Disaster at Warsaw,

Poland, 535 F. Supp. 833, 844-45 (E.D.N.Y. 1982), aff'd,

705 F.2d 85 (2d Cir.), cert. denied, U.S. , 104 S. Ct. 147

(1983), that the Warsaw Convention exclusively governs

all claims for damages arising out of the injury or death

of a passenger in international flight, thereby precluding

a wrongful death action under state law. That statement,

however, must be read in the context there, an airplane

crash which is the archetypical “accident” where the Con-

vention’s terms specifically apply.

Thus, both the language of Articles 17 and 24 of the

Warsaw Convention and the case law precedent lead us

to conclude that the district court erred in failing to reach

plaintiff’s negligence and willful misconduct claims after

correctly finding there was no “accident” under the Warsaw

Convention.

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Opinion of Court of Appeals

IV.

Conclusion

JAL has asked us to affirm the order granting summary

judgment even if the rights of the parties are not governed

exclusively by the Warsaw Convention. It argues that as

a matter of law it had uo duty to provide Abramson with

a place to lie down under the circumstances of this case.

That issue, as well as the question of whether there is a

genuine dispute of material fact with respect to Abramson’s

state law negligence and willful misconduct claims, should

be addressed in the first instance by the district court. If

there is such a fact question, then of course summary judg-

ment would be precluded. Since these claims are based

on local law, it follows that the Convention’s $75,000 limit

would be inapplicable.

In summary, we have concluded that the occurrence that

allegedly aggravated plaintiff's condition was not an “ac-

cident” within the terms of Article 17 of the Warsaw Con-

vention and that the claim brought under the Warsaw

Convention was properly dismissed. However, the district

court erred in failing to reach the state law claims. When

the Warsaw Convention is inapplicable to the claim raised,

it does not serve as a bar to alternative theories of re-

covery. Accordingly, we will affirm the entry of summary

judgment for defendant on Count II of the complaint, and

we will vacate the entry of summary judgment for defen-

dant on Counts I and III and remand this case to the

district court for further proceedings pursuant to this

opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

lla

Opinion of District Court

UNITED STATES DISTRICT COURT

District or NEw JERSEY

Civ. 82-4374

StanLeEY ABRAMSON,

Plaintiff,

vs.

Japan Arr Lines, Co., Lrp.,

Defendant.

This is a suit for personal injury claimed to have been

sustained by the plaintiff while a passenger on one of

defendant’s aircraft on a commercial flight that had left

Kennedy Airport in New York, flown to Anchorage, Alaska,

and had left there headed for Tokyo, Japan. There were

to be later stops down to Hong Kong and eventual return

to New York. The ticket for the flight was evidently part

of a tour organized by ABC Tours in Union, New Jersey.

It comes before the court on defendant’s motion to

dismiss the complaint for failure to state a claim, Rule

12(b)(6), and in the alternative for a partial summary

judgment that defendant’s liability is limited to $75,000

under the Warsaw Convention as modified by the Montreal

Agreement and tariffs for international flights for which

a point in the United States is a point of origin, destina-

tion, or agreed stopping place.

The factual account, which appears from the deposition

testimony of plaintiff and his wife is brief and obviously

not in dispute. They had purchased tickets for an air tour

to the Far East, with Japan Airlines as the air carrier.

They left from Kennedy on a non-stop flight of some 6.5

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Opinion of District Court

to 7 hours, to Anchorage, Alaska, where they stayed per-

haps an hour. The plane then left for the remaining hop

to Tokyo, Japan, the first tour stop.

About a half-hour to one-hour after takeoff from Alaska,

plaintiff began to feel a discomfort which he attributes to

a hiatus hernia which had developed some 5 or 6 years back,

and which had been managed by avoiding spices and the

like, by taking digestive aids such as Maalox, but which

had occasionally “acted up” with no discernable pattern.

Except for one instance, in June of the year before, he

had managed each episode by moving about, lying down,

getting up a bubble of “gas”, and, on occasion deliberately

causing himself to vomit. The exception in June of the

year before was an occasion when these efforts resulted

in some internal bleeding for which he was hospitalized

and treated without surgery. He was told after that in-

cident that surgery to repair the hernia should be con-

sidered on an elective basis.

On the flight, when his condition flared up, he was not

able to achieve relief. His wife asked a stewardess if there

was some place on the plane where plaintiff could lie down,

but was told there was not because all seats were filled.

He tried to lie down on the two seats he and his wife had,

but the space was too narrow. He could not lie down in

an aisle because passengers walking about could step on

him. One or the other must have made some request,

though neither recalls it, or perhaps it was radioed ahead

as a precaution, but there was a wheelchair waiting for

plaintiff at the airport in Tokyo. They were transported

by bus with their baggage to their hotel, checked in, but

plaintiff could not relieve his discomfort.

A physician was called and plaintiff was taken to a Tokyo

hospital. After examination and treatment, it was recom-

mended that the couple return to New York for medical

treatment. This was done (at some extra expense as they

had left their tour group), and surgery was performed to

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Opinion of District Court

repair the hiatus hernia. There has been no recurrence

since.

The complaint is in three counts. The first is grounded

on negligence in failing to have a place on board the plane

to lie down. The second asserts liability without fault

under the Warsaw Conventicn. The third asserts wilfull

and wanton conduct in failing to provide a space to lie

down, as a basis for punitive damages.

Suit was filed in Superior Court of New Jersey and re-

moved here for diversity jurisdiction, 28 USC §1332.

A letter order by the Magisirate after a status conference

in May directed that the purser on board the flight be made

available for depositions; and that all fact discovery be

completed by August 15, 1983. It required plaintiff’s ex-

perts reports (if any) to be served no later than August

15th, and defendant’s experts reports to be served not

later than September 15th.

Another paragraph directed that the substantive law of

New Jersey was to apply in the case unless one party or

the other filed a motion returnable not later than July 15,

1983 to show why the substantive law of another jurisdic-

tion should apply. There has been no such motion.

The motion to dismiss rests on matters outside the plead-

ings, such as plaintiff’s airline ticket, his and his wife’s

deposition. The court considers these proof matters, and

so is required by Rule 12(b) to treat the motion as one

for summary judgment.

Applicable law

In the Second Circuit, the rule was laid down that a

claim like the present one is for a federal cause of action

under 28 USC §1331 because it is created by the Warsaw

Convention. Benjamins v. British European Airways, 572

F.2d 9183 (CA-2, 1978), cert. den. 439 U.S. 1114. On that

principle, diversity of citizenship loses meaning, and the

l4a

Opinion of District Court

substantive law of the forum state would not be binding

under Erie R. Co. v. Tompkins, 304 U.S. 64 (1938).

In this Cireuit, the U.S. Court of Appeals has noted the

decision of the Second Circuit, but has noi decided the

point, De Marines v. KLM, etc., 580 F.2d 1193 at pages

1200-1201 (CA-3, 1978).

The provisions of the Montreal Agreement carry the sug-

gestion that substantive law of the forum State may be

looked to in certain instances specified. For example the

approved tariff allowing recovery up to US $75,000. in-

cludes legal fees and costs, except that in case of a claim

brought in a State where provision is made for separate

award of legal fees and costs, the limit shall be the sum

of US $58,000 exclusive of legal fees and costs.

The Warsaw Convention is a treaty ratified by the United

States. The Montreal Agreement draws force from the

tariffs filed with and approved by the Civil Aeronautics

Board, under federal law, and so both are part of the law

of New Jersey, the forum State, by virtue of Art VI of

the U.S. Constitution as “the Supreme law of the land”,

which all judges are duty bound to apply, any law of

the State to the contrary notwithstanding.

Thus, the matter may be looked at as a situation in which

the law of the forum State has been modified by paramount

law to some extent or other.

The closest analogy of recent years is that of the law of

defamation. The substantive law on the subject is the

law of the several States, yet, beginning with New York

Times v. Sullivan, 376 U.S. 254 (1964) and continuing

through Gertz v. Welch, 418 U.S. 323 (1974), the law of

all the States has been modified by the provisions of the

First Amendment, applied to the States through the Four-

teenth. See Prager v. American Broadcasting Co.,

F.Supp. (D-N.J., 1983) and cases cited, particularly

Kotlhkoff, 89 N.J., (1982) ; Maressa, 89 N.J. 176 (1982) and

Lawrence, 89 N.J. 451 (1982), showing that New Jersey’s

lda

Opinion of District Court

highest court continues to treat defamation law as State

law with the modifications imposed by paramount law,

as integrated into it.

This structure is underscored by the recognized applica-

bility of privilege rules of the forum State in respect to the

media, see N.J. Ev. Rule 27 (1977) and N.J.S.A. 2A :84A-

21.1 et seq. (1980). The Pennsylvania “shield law” was

also applied in Steaks Unlimited v. Deaner, 623 F.2d 264

(CA-3, 1977).

Fed. Ev. Rule 501 carries no media shield law or privi-

lege, but it does provide that in civil actions where State

law supplies the rule of decision on an element of a claim

or defense, the matter of privilege is determined by the

State law. This confirms the nature of defamation law as

being State law, modified to the extent that paramount law

prevails and so becomes part of the tenor of the State law.

Since no motion was filed returnable not later than July

15, 1983 as the Magistrate’s letter order required, the ap-

plicable law is taken as New Jersey law as modified by

the paramount law of the Wars:w Convention and the

federal tariff filed with and approved by the Civil Aero-

nautics Board.

Conclusions

De Maries v. KLM, etc., 580 F.2d 1193 (CA-3, 1978),

and Warshaw v. Trans World Airlines, 442 F. Supp. 400

(D-Pa, 1977) state so much of the applicable law as is

pertinent here because, being part of the paramount law

modifying and integrated into the local law of every State,

it is necessarily uniform. Both are in agreement that under

Article 17 of the Warsaw Convention, the cause of action

against the air carrier was created and its nature, as

modified by the tariffs under the Montreal Agreement, is

one of a special absolute liability standard, subject to the

US $75,000 limit, for injuries proximately caused by some

“accident” on board the plane.

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Opinion of District Court

The DeMarimes case lays down the law for this circuit

that defines what an “accident” is in this sense. Applied

here, the factual record utterly fails to show any kind of

“accident”, or to suggest that the flight, as such, was other

than an uneventful flight.

The allegations of negligence, or of wilfull failure, etc.,

add nothing to the claim, the first because liability, when

it exists, arises without regard to negligence and the second

because it has meaning only to support punitive damages,

which are not recoverable unless there is a right to recover

compensatory damages. The absence of an “accident” pre-

cludes liability, both compensatory and punitive.

There is no fact question here, as there was in DeMarines,

supra, about delivery of the ticket. The deposition testi-

mony shows the ticket was delivered, and a photocopy ex-

pressly referring to the Warsaw Convention was an exhibit

there and on this motion.

In sum, the plaintiff’s deposition testimony, corroborated

by his wife’s, is that he boarded the international flight with

the physiological defect of a hiatus hernia which, in his

own experience, could “act up” into an acute condition of

varying degrees of intensity wherever he was and under

unpredictable conditions. There is nothing to suggest that

anything on or about the flight had any proximate cause

relation to the unfortunate experience that developed. He

has been on many commercial flights since the condition

first manifested itself, and it never flared up before during

a flight. He informed no one at the airline of his hernia

before boarding; he consulted no physician before going

on the flight. No medical or other expert proof of any

kind is presented to meet the motion tending to show any

kind of factual basis for a jury to make a finding that

there was an “accident”, much less proximate cause.

An airline passenger may experience any of a countless

number of painful occurrences while on a flight, which have

nothing to do with where the person is at the time. A kidney

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Opinion of District Court

stone can bring about the most excruciating and torturing

discomfort even though never experienced before, any-

where, anytime. A gall bladder attack can occur without

external cause or warning anytime, anywhere. So, also,

with appendicitis. And so with many other human ills.

The mere happening of one of these malfunctionings of

the human organism on board a commercial airline flight

governed by the Warsaw Convention and Montreal Agree-

ment tariffs is not actionable unless an “accident” on the

flight is the proximate cause.

There being ne genuine issue on any material fact, and

defendant being entitled to jndgment as a matter of law,

summary judgment will be eutered against plaintiff and

in favor of defendant.

September 26, 1983

s/ Vineent P. Biunno, U.S.D.J.

lsa

Memorandum and Order of District Court

dated October 11, 1983

UNITED STATES DISTRICT COURT

District or New Jersey

Civ. 82-4374

StanLey ABRAMSON,

Plaintiff,

vs.

Japan Air Lines Co., Lrp.,

Defendant.

Defendant’s motion for summary judgment had been no-

ticed, and was called, for September 26, 1933. No papers

of any kind were submitted or filed in opposition.

When no one answered the call, the court ordered the

matter decided under Rule 78, without oral argument. Its

written ruling was issued and final judgment entered in

favor of defendant and against plaintiff. The reasons are

fully explained in the ruling.

Later in that week the court received a letter from

plaintiff's attorney to the effect that private arrangements

had been made between the attorneys to adjourn the hear-

ing to October 11, 1983. No word of this had ever been

sent to the court, even informally, and no consent order or

other order for adjournment had ever been requested, sub-

mitted or approved. The letter itself was informal and

not of record, and the court entered a memorandum treat-

ing it as a motion to alter or amend the judgment already

entered, with argument set for October 11, 1983.

In support of his position, plaintiff filed an affidavit of

plaintiff's wife, a “To Whom it May Concern” letter from

a physician (neither sworn to nor certified in lieu of oath

19a

Memorandum and Order of District Court

dated October 11, 1983

under the statute), a copy of the deposition of the purser

on the flight, and another set of copies of the depositions

of plaintiff and his wife, which were already in the record

as part of defendant’s moving papers.

As noted in the ruling, plaintiff's deposition testimony

disclosed that he had developed a “hiatus hernia” a num-

ber of years before, that it oceasionally “acted up” in an

entirely unpredictable fashion, that he did not consult his

physician before the flight on the subject, that he did not

inform anyone connected with the airline about his latent

condition, and that while he had been able to relieve his

distress on occasions when the condition acted up, this had

not been the case in June of the year before when his

failure to relieve his distress had caused a hospitalization

at Overlook Hospital to control some consequent internal

bleeding.

None of this is denied in the opposing papers. In fact,

the new affidavit of plaintiff’s wife wholly ignores the ex-

perience of June of the year before as though it had never

happened.

The “To Whom It May Concern” letter cannot be con-

sidered because it is not under oath or certified in lieu of

oath. Even absent this defect, it would not serve to raise

a genuine issue of material fact. The physician is not

identified as a physician consulted for diagnosis or treat-

ment and so the “history” recited would not be acceptable

for consideration under Fed. Ev.Rule 803(4). The history

he recites is not shown to have been provided by the plain-

tiff, and it significantly omits any reference to the hos-

pitalization at Overlook Hospital. Thus, the opinion given,

if relevant at all, would not be admissible because the facts

it assumes are at odds with plaintiff's own sworn testimony.

There is no effort to provide data from the regular physi-

cian, from the records at Overlook, or from the physician

and hospital in New York where the later corrective sur-

gery was performed.

20a

Memorandum and Order of District Court

dated October 11, 1983

Similarly, the deposition testimony of the purser dis-

closes no genuine issue of material fact. Nothing in it so

much as remotely suggests the occurrence on the flight of

any event that could rationally be regarded as an “accident”

from which plaintiff’s claimed injury resulted. At the end

of that transcript there are some sheets of what appear

to be basic first aid instructions in case of vomiting. Not

only is there no reference in the transcript to identify that

document, but on its face it cautions against allowing a

person so afilicted to lie down on his back.

Had all these materials been submitted in time for con-

sideration before the court ruled on the motion, they would

have failed to raise a genuine issue of material fact since

they provide no fact basis on which a finding of an “acci-

dent” could be predicated.

Finally, piaintiff argues in the brief that defendant can-

not claim application of the Warsaw Convention because

the notice printed, as it appears on the coupon, is in less

than 10 point type. In response, defendant observes that

the coupon is only part of the entire ticket, and that on

the airline ticket itself the notice is printed in 10 point type.

At argument, plaintiff could not say that he had evidence

to show that the notice on the ticket itself was in less than

10 point type.

ORDER

For the reasons stated above, it is on this 11th day of

October, 1983 Orverep that plaintiff's motion to alter or

amend the judgment be and the same hereby is denied.

s/ Vincent P. Biunno, U.S.D.JJ.

2la

Memorandum of District Court

dated September 29, 1983

UNITED STATES DISTRICT COURT

District or New JERSEY

Civ. 82-4374

STANLEY ABRAMSON,

Plaintiff,

vs.

Japan Air Lines Co., Lrp.,

Defendant.

Plaintiff’s attorney has written the court to report that

at some undisclosed time before September 26, 1983 both

sides agreed to an adjournment of defendant’s motion from

that date to October 11, 1983 and a stipulation was drawn

and circulated. Relying on this, plaintiff filed opposition

papers on September 27th, the last day for a motion re-

turnable on October 11, 1983.

Nothing of this came to the court’s attention. Hearing

dates cannot be adjourned by stipulation of the parties,

oral or written. An order is necessary.

The court called the case, there was no response, and

having no papers in opposition, decided the motion under

Rule 78 (without oral argument).

The letter request is also irregular. It will be treated as

a motion to alter or amend the judgment under Rule 59(e),

and hearing on the question is set for October 11, 1983 at

10 AM. The letter is attached for the record.

September 29, 1983

s/ Vincent P. Biunno, U.S.D.J.

22a

Judgment of Court of Appeals

UNITED STATES COURT OF APPEALS

For tHe Turrp Circvir

No. 83-5750

ABRAMSON, STANLEY,

Appellant

vs.

JAPAN AIRLINES

(D.C. Civil No. 82-4374)

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

Present:

Gartu and Suiovirer, Circuit Judges and

Neauer, District Judge*

JUDGMENT

This cause came on to be heard on the record from the

United States District Court for the District of New Jersey

and was submitted under Third Cireuit Rule 12(6) on May

22, 1984.

On consideration whereof, it is now here ordered and

adjudged by this Court that the judgment of the said Dis-

trict Court, entered September 28, 1983, as made final by

its order entered October 13, 1983, be, and the same is

* Hon. Edward R. Neaher, United States District Court for the

Eastern District of New York, sitting by designation.

23a

Judgment of Court of Appeals

hereby affirmed insofar as it entered judgment for defen-

dant on Count II. It is further ordered and adjudged that

the judgment of the said District Court on Counts I and III

of plaintiff's complaint is hereby vacated and the cause

remanded for further proceedings consistent with the opin-

ion of this Court.

ATTEST

/s/ Satty Mavos

Clerk

July 19, 1984

Certified as a true copy and issued in lieu

of a formal mandate on September 24, 1984.

Test: /s/ M. Exizapetru Frercuson

Chief Deputy Clerk, United States Court of Appeals

for the Third Circuit.

24a

Order Denying Petition for Rehearing

UNITED STATES COURT OF APPEALS

For tHE Tuirp Circuit

No. 83-5750

STANLEY ABRAMSON,

Appellant,

v.

Japan Arruines Co., Lop.,

Appellee.

Present:

GartH and Swiovirer, Circuit Judges, and

NeaHer, District Judge*

The petition for rehearing filed by Appellee, Japan Air-

lines Co., Ltd., in the above-entitled case having been sub-

mitted to the judges who participated in the decision of

this court, and no judge who concurred in the decision

having asked for rehearing, the petition for rehearing is

denied.

By the Court,

/s/ Nicuouas K. Siovirer

Circuit Judge

Dated: September 14, 1984

* Hon. Edward R. Neaher, United States District Court for the

Eastern District of New York, sitting by designation.

25a

Convention for the Unification of Certain Rules Relating

to International Transportation by Air, October 12,

1929. 49 Stat. 3000 (1934), T.S. No. 876, 137

L.N.T.S. 11, reprinted in 49 U.S.C. §1502 note (1970).

Chapter I

Scope-Definitions

Article I

(1) This convention shall apply to all international

transportation of persons, baggage, or goods per-

formed by aircraft for hire. It shall apply equally

to gratuitous transportation by aircraft performed by

an air transportation enterprise.

(2) For the purposes of this convention the expres-

sion “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 High Contracting

Party, if there is an agreed stopping place within a

territory subject to the sovereignty, suzerainty, man-

date or authority of another power, even though that

power is not a party to this convention. Transporta-

tion without such an agreed stopping place between

territories subject to the sovereignty, suzerainty, man-

date, or authority of the same High Contracting Party

shall not be deemed to be international for the pur-

poses of this convention.

49 Stat. 3014.

26a

Convention for the Unification of Certain Rules Relating

to International Transportation by Air

Chapter IIT

Liability of the Carrier

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.

49 Stat. 3018.

Article 18

(1) The carrier shall be liable for damage sustained

in the event of the destruction or loss of, or of dam-

age to, any checked baggage or any goods, if the oe-

currence which caused the damage so sustained took

place during the transportation by air.

(2) The transportation by air within the meaning

of the preceding paragraph shall comprise the period

during which the baggage or goods are in charge of

the carrier, whether in an airport or on board an air-

craft, or, in the case of a landing outside an airport,

in any place whatsoever.

(3) The period of the transportation by air shall

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

by river performed outside an airport. If, however,

such transportation takes place in the performance of

a contract for transportation by air, for the purpose

of loading, delivery or transshipment, any damage is

presumed, subject to proof to the contrary, to have

27a

Convention for the Unification of Certain Rules Relating

to International Transportation by Air

been the result of an event which took place during

the transportation by air.

49 Stat. 3019.

Article 19

The carrier shall be liable for damage occasioned by

delay in the transportation by air of passengers, bag-

gage, or goods.

49 Stat. 3019.

Article 20

(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.

(2) In the transportation of goods and baggage the

carrier shall not be liable if he proves that the dam-

age was occasioned by an error in piloting, in the

handling of the aircraft, or in navigation and that, in

all other respects, he and his agents have taken all

necessary measures to avoid the damage.

49 Stat. 3019.

Article 21

If the carrier proves that the damage was caused by

or contributed to by the negligence of the injured per-

son the court may, in accordance with the provisions

of its own law, exonerate the carrier wholly or partly

from his liability.

49 Stat. 3019.

28a

Convention for the Unification of Certain Rules Relating

to International Transportation by Air

Article 22

(1) In the transportation of passengers the liability

of the carrier for each passenger shall be limited to

the sum of 125,000 frances. 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 pay-

ments shall not exceed 125,000 francs. Nevertheless,

by special contract, the carrier and the passenger may

agree to a higher limit of liability.

49 Stat. 3019.

Article 23

Any provision tending to relieve the carrier of lia-

bility or to fix a lower limit than that which is laid

down in this convention shall be nul! and void, but

the nullity of any such provision shall not involve the

nullity of the whole contract, which shall remain sub-

ject to the provisions of this convention.

49 Stat. 3020.

Article 24

(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.

49 Stat. 3020.

29a

Convention for the Unification of Certain Rules Relating

to International Transportation by Air

Article 25

(1) The carrier shall not be entitled to avail him-

self of the provisions of this convention which exclude

or limit his liability, if the damage is caused by his

wilful misconduct or by such default on his part as,

in accordance with the law of the court to which the

case is submitted, is considered to be equivalent to

wilful misconduct.

(2) Similarly the carrier shall not be entitled to

avail himself of the said provisions, if the damage is

caused under the same circumstances by any agent of

the carrier acting within the scope of his employment.

49 Stat. 3020.

Article 26

(1) Receipt by the person entitled to the delivery of

baggage or goods without complaint shall be prima

facie evidence that the same have been delivered in

good condition and in accordance with the document

of transportation.

(2) In case of damage, the person eatitled to de-

livery must complain to the carrier forthwith after the

discovery of the damage, and, at the latest, within 3

days from the date of receipt in the case of baggage

and 7 days from the date of receipt in the ease of

i goods. In ease of delay the complaint must be made

at the latest within 14 days from the date on which

the baggage or goods have been placed at his disposal.

(3) Every complaint must be made in writing upon

the document of transportation or by separate notice

in writing dispatched within the times aforesaid.

hecietehatiatiaiaeaeaaiitiiemaiil

30a

Convention for the Unification of Certain Rules Relating

to International Transportation by Air

(4) Failing complaint within the times aforesaid,

no action shall lie against the carrier, save in the case

of fraud on his part.

49 Stat. 3020.

Article 27

In the case of the death of the person liable, an ac-

tion for damages lies in accordance with the terms of

this convention against those legally representing his

estate.

49 Stat. 2020.

Article 28

(1) An action for damages must be brought, at the

option of the plaintiff, in the territory of one of the

High Contracting Parties, either before the court of

the domicile of the carrier or of his principal place

of business, or where he has a place of business through

which the contract has been made, or before the court

at the place of destination.

(2) Questions of procedure shall be governed by the

law of the court to which the case is submitted.

49 Stat. 3020.

Article 29

(1) The right to damage shall be extinguished if an

action is not brought within 2 years, reckoned from

the date of arrival at the destination, or from the date

on which the aircraft ought to have arrived, or from

the date on which the transportation stopped.

3la

Convention for the Unification uf Certain Rules Relating

to International Transportation by Air

(2) The method of calculating the period of limita-

tion shall be determined by the law of the court to

which the case is submitted.

49 Stat. 3021.

Article 30

(1) In the case of transportation to be performed

by various successive carriers and falling within the

definition set out in the third paragraph of article 1,

each carrier who accepts passengers, baggage or goods

shall be subject to the rules set out in this convention,

and shall be deemed to be one of the contracting par-

ties to the contract of transportation insofar as the

contract deals with that part of the transportation

which is performed under his supervision.

(2) In the case of transportation of this nature, the

passenger or his representative can take action only

against the carrier who performed the transportation

during which the accident or the delay occurred, save

in the case where, by express agreement, the first car-

rier has assumed liability for the whole journey.

(3) As regards baggage or goods, the passenger or

consignor shall have a right of action against the first

carrier, and the passenger or consignee who is entitled

to delivery shall have a right of action against the

last carrier, and further, each may take action against

the carrier who performed the transportation during

which the destruction, loss, damage, or delay took

place. These carriers shall be jointly and severally

liable to the passenger or to the consignor or con-

signee.

49 Stat. 3021.

32a

31 Fed. Reg. 7302 (1966)

[Docket No. 17325; Order No. E-23680]

LIABILITY LIMITATIONS OF WARSAW CONVEN-

TION AND HAGUE PROTOCOL

Orper Approvinc AGREEMENT

Adopted by the Civil Aeronautics Board at its office in

Washington, D.C., on the 13th day of May, 1966.

The Convention for the Unification of Certain Rules Re-

lating to International Transportation by Air, generally

known as the Warsaw Convention, creates a uniform body

of law with respect to the rights and responsibilities of

passengers, shippers, and air carriers in international air

transportation. The United States became a party to the

Convention in 1934, and eventually over 90 countries like-

wise became parties to the Convention.’ On November 15,

1965, the U.S. Government gave notice of denunciation of

the Convention, emphasizing that such action was solely

because of the Convention’s low limits of liability for per-

sonal injury or death to passengers. Pursuant to Article 39

of the Convention this notice would become effective upon

6 months’ notice, in this case, May 15, 1966. Subsequently,

the International Air Transport Association (IATA) made

efforts to effect an arrangement among air carriers, for-

eign air carriers, and other carriers (including carriers not

members of IATA) providing the major portions of inter-

national air carriage to and from the United States to in-

crease the limitations of liability now applicable to claims

1 The Convention was amended by the Protocol signed at Hague

in 1955 which has never been ratified by the United States. The

Convention (subject to certain provisions) limits carriers’ liability

for death or injury to passengers in international transportation

to 125,000 gold francs, or approximately $8,300. The Protocol,

subject to certain provisions, provides for liability limitations of

approximately $16,600.

33a

31 Fed. Reg. 7302 (1966)

for personal injury and death under the Convention and

the Protocol. The purpose of such action is to provide a

basis upon which the United States could withdraw its

notice of denunciation.

The arrangement proposed has been embodied in an

agreement (Agreement CAB 18900) between various air

carriers, foreign air carriers, and other carriers which has

been filed with the Board pursuant to section 412(a) of

the Federal Aviation Act of 1958 and Part 261 of the

Board’s economic regulations and assigned the above-desig-

nated CAB number.

By this agreement, the parties thereto bind themselves

to include in their tariffs, effective May 16, 1966, a special

contract in accordance with Article 22(1) of the Coven-

tion or the Protocol providing for a limit of liability for

each passenger for death, wounding, or other bodily in-

jury of $75,000 inclusive of legal fees, and, in case of a

claim brought in a State where provision is made for sep-

arate award of legal fees and costs, a limit of $58,000 ex-

elusive of legal fees and costs. These limitations shall be

applicable to international transportation by the carrier

as defined in the Convention or Protocol which includes

a point in the United States as a point of origin, point of

destination, or agreed stopping place. The parties further

agree to provide in their tariffs that the Carrier shall not,

with respect to any claim arising ou‘ of the death, wound-

ing, or other bodily injury of a passenger, avail itself of

any defense under Article 20(1) of the Convention or the

Convention as amended by the Protocol. The tariff provi-

sions would stipulate, however, that nothing therein shall

be deemed to affect the rights and liabilities of the Carrier

with regard to any claim brought by, on behalf of, or in

respect of any person who has willfully caused damage

which results in death, wounding, or other bodily injury

of a passenger.

lll

34a

31 Fed. Reg. 7302 (1966)

The carriers by the agreement further stipulate that

they will, at time of delivery of the tickets, furnish to each

passenger governed by the Convention or the Protocol and

by the special contract described above, a notice in 10 point

type advising international passengers of the limitations

of liability established by the Convention or the Protocol,

or the higher liability agreed to by the special contracts

pursuant to the Convention or Protocol as described above.

The agreement is to become effective upon approval by

this Board, and any carrier way become a party to it by

signing a counterpart thereof and depositing it with the

Board. Withdrawal from the agreement may be effected

by giving 12 months’ written notice to the Board and the

other Carrier parties thereto.

As indicated, the decision of the U.S. Government to

serve notice to denounce the Convention was predicated

upon the low liability limits therein for personal injury

and death. The Government announced, however, that it

would be prepared to withdraw the Notice of Denunciation

if, prior to its effective date, there is a reasonable prospect

for international agreement on limits of liability for inter-

national transportation in the area of $100,000 per pas-

senger or on uniform rules without any limit of liability,

and if pending such international agreement there is a pro-

visional arrangement among the principal international

air carriers providing for liability up to $75,000 per pas-

senger.

Steps have been taken by the signing carriers to have

tariffs become effective May 16, 1966, upon approval of this

agreement, which will increase by special contract their

liability for personal injury or death as described herein.

The signatory carriers provide by far the greater portion

of international transportation to, from, and within the

United States. The agreement will result in a salutory in-

crease in the protection given to passengers from the in-

creased liability amounts and the waiver of defenses under

eT

35a

31 Fed. Reg. 7302 (1966)

Article 20(1) of the Covention or Protocol. The U.S.

Government has concluded that such arrangements warrant

withdrawal of the Notice of Denunciation of the Warsaw

Convention. Implementation of the agreement will permit

continued adherence to the Convention with the benefits to

be derived therefrom, but without the imposition of the

low liability limits therein contained upon most interna-

tional travel involving travel to or from the United States.

The stipulation that no tariff provision shall be deemed to

affect the rights and liabilities of the carrier with regard

te any claim brought by, on behalf of, or in respect of any

person who has willfully caused damage which results in

death, wounding or other bodily injury of a passenger

operates to diminish any incentive for sabotage.

Upon consideration of the agreement, and of matters re-

lating thereto of which the Board takes notice, the Board

does not find that the agreement is adverse to the public

interest or in violation of the Act and it will be approved.

Accordingly, pursuant to the provisions of the Federal

Aviation Act of 1958 and particularly sections 102, 204(a)

and 412 thereof:

It is ordered, That: 1. Agreement “AB 18900 is ap-

proved.

This order will be published in the Freperat Reoisrer.

By the Civil Aeronautics Board.

[SEAL] Harotp R. Sanperson,

Secretary.

[F.R. Doc. 66-5494; Filed, May 15, 1966 8:49 a.m.]

36a

Agreement CAB 18900

CAB Form 263

(Rev. 1-76)

AGREEMENT

The undersigned carriers (hereinafter referred to as

“the Carriers”) hereby agree as follows:

1. Each of the Carriers shall, effective May 16, 1966,

include the following in its conditions of carriage, includ-

ing tariffs embodying conditions of carriage filed by it with

any government:

“The Carrier shall avail itself of the limitation of

liability provided in the Convention for the Unifica-

tion of Certain Rules Relating to International Car-

riage by Air signed at Warsaw October 12th, 1929, or

provided in the said Convention as amended by the

Protocol signed at The Hague September 28th, 1955.

However, in accordance with Article 22(1) of said

Convention, or said Convention as amended by said

Protocol, the Carrier agrees that, as to all interna-

tional transportation by the Carrier as defined in the

said Convention or said Convention as amended by

said Protocol, which, according to the Contract of

Carriage, includes a point in the United States of

America as a point of origin, point of destination, or

agreed stopping place

(1) The limit of liability for each passenger for death,

wounding, or other bodily injury shall be the sum

of US $75,000 inclusive of legal fees and costs,

except that, in case of a claim brought in a State

where provision is made for separate award of

legal fees and costs, the limit shall be the sum of

US $58,000 exclusive of legal fees and costs.

—

37a

Agreement CAB 18900

(2) The Carrier shall not, with respect to any claim

arising out of the death, wounding, or other bodily

injury of a passenger, avail itself of any defense

under Article 20(1) of said Convention or said

Convention as amended by said Protocol.

Nothing herein shall be deemed to affect the rights

and liabilities of the Carrier with regard to any claim

brought by, on behalf of, or in respect of any person

who has wilfully caused damage which resulted in

death, wounding, or other bodily injury of a passen-

ger.”

2. Each Carrier shall, at the time of delivery of the

ticket, furnish to each passenger whose transportation is

governed by the Convention, or the Convention as amended

by the Hague Protocol, and by the special contract de-

scribed in paragraph 1, the following notice, which shall

be printed in type at least as large as 10 point modern

type and in ink contrasting with the stock on (i) each

ticket; (ii) a piece of paper either placed in the ticket

envelope with the ticket or attached to the ticket; or (iii)

on the ticket envelope:

“ApvicE TO INTERNATIONAL PASSENGER ON

Limitation oF LiaBILity

Passengers on a journey involving an ultimate desti-

nation or a stop in a country other than the country

of origin are advised that the provisions of a treaty

known as the Warsaw Convention may be applicable

to the entire journey, including any portion entirely

within the country of origin or destination. For such

passengers on a journey to, from, or with an agreed

stopping place in the United States of America, the

Convention and special contracts of carriage embodied

38a

Agreement CAB 18900

in applicable tariffs provide that the liability of

[certain | gs

{(name of carrier) and certain other] carriers parties

to such special contracts for death of or personal in-

jury to passengers is limited in most cases to proven

damages not to exceed US $75,000 per passenger, and

that this liability up to such limit shall not depend on

negligence on the part of the carrier. For such passen-

gers travelling by a carrier not a party to such special

contracts or on a journey not to, from, or having an

agreed stopping place in the United States of America,

liability of the carrier for death or personal injury

to passengers is limited in most cases to approximately

US $10,000 or US $20,000.

The names of Carriers parties to such special con-

tracts are available at all ticket offices of such carriers

and may be examined on request.

Additional protection can usually be obtained by

purchasing insurance from a private company. Such

insurance is not affected by any limitation of the car-

rier’s liability under the Warsaw Convention or such

special contracts of carriage. For further information

please consult your airline or insurance company rep-

resentative.”

3. This Agreement shall be filed with the Civil Aero-

nautics Board of the United States for approval pursuant

to Section 412 of the Federal Aviation Act of 1958, as

amended, and filed with other governments as required.

The Agreement shall become effective upon approval by

said Board pursuant to said Section 412.

4. This Agreement may be signed in any number of

counterparts, all of which shall constitute one Agreement.

* Either alternative may be used.

39a

Agreement CAB 18900

Any Carrier may become a party to this Agreement by

signing a counterpart hereof and depositing it with said

Civil Aeronautics Board.

5. Any Carrier party hereto may withdraw from this

Agreement by giving twelve (12) months’ written notice

of withdrawal to said Civil Aeronautics Board and the

other Carriers parties to the Agreement.

ee eee eee eee

SERRE HERERO OEE OOOO