Petition for Writ of Certiorari — Estate of Ospina ex rel. Coughlin v. Trans World Airlines, Inc.
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IN LHE
Supreme Court of the United States 0 H6 GLERK
OCTGCGBER TERM, 1992
[HE ESTATE OF ALBERTO QOsPINA By His EXeEcurTor,
THoMaAs C. CouGHLIn, and MARGOTH OsPINA and
WILLIAM OspINA and TAMARA OSPINA,
Petitigners
against
TRANS WORLD AIRLINES, INC.,
Respondent,
EF RIGITRONICS, INC.,
Intervenor.
MOHSEN YOUSSEF,
Petitioner,
against
TRANS WORLD AIRLINES, INC.,
Respondent.
Petition for a Writ of Certiorari to the United
FREDRIC LEWIs
Counsel of Record
7 Dey Street
New York, New York 1LQ0Q07
(212) 227-3900
Attorney for The Estate of
Alberto Ospina
GILMAN, OLSON & PANGIA
IS15 H. Street, N.W. =600
Washington, D.C. 20006
(202) 466-5100
Attorneys for Mohsen Youssef
SIFF ROSEN P.C.
IGNATIUS JOHN MELITO
Of Counsel
Questions Presented.
l. Whether an airline should receive shelter from
liability under the Warsaw Convention if it deliberately and
willfully akandons procedures for screening passengers that it
had agreed with the United States government to follow, and
indeed had considered essential and had followed for many
years?
é. Whether the safety of the traveling public on
United States international airlines requires that an international
air carrier do more than simply comply with existing written
administrative safety regulations and the safety laws of the
foreign countries to which the airline flies, when the airline has
agreed with the United States government that additional
precautions will be followed and the airline itself acknowledges
that certain specific additional precautions are necessary?
3. Whether the unprecedented, narrow test of
“willful misconduct" under the Warsaw Convention articulated
by the circuit panel should be reversed by this Court since it
conflicts with broader interpretations by the Circuit Courts of
the District of Columbia Circuit and the Eleventh Circuit,
which are supported by the plain text of the Warsaw Conven-
tion?
ii
Table of Contents.
Questions Presented .......................
Table of Authorities. ......................
Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Second Circuit .....................
cc.
Se nk i wn ee ea cece,
The Circuit Court’s decision conflicts
with other Circuits ...................
The Circuit Court improperly substituted
its judgment for that of the Jury ..........
EE
13
21
ill
TABLE OF AUTHORITIES.
CASES:
Butler v. Aeromexico, 774 F.2d 429 (11th Cir. 1985) .. 12
Dennis v. Denver & Rio Grande Western
Railroad, Co., 375 U.S. 208, 210 (1963) .......... 20
KLM Royal Dutch Airlines v. Tuller,
ae Bae Fie Cea Moc CPOE 6 ea eR ee se 18
KLM v. Tuller, 292 F.2d 775 (D.C. Cir. 1961) ..... 1]
Lavender v. Kurn, 327 U.S. 645 (1946) ....... os ae
Pekelis v. Transcontinental & Western Air, Inc.,
1a? P20 ian Cee ee ee oe a ea ee . 10
Republic Nat’! Bank of New York v. Eastern Airlines,
eR © igs be A 7) ee eer rere 17
Tug Ocean Prince, Inc., 584 F.2d 1151 (2d Cir. 1978). 18
STATUTES AND TREATIES:
Be Ue: © RE 6 eee ee le ee eee ep eee 5
A U.S A.. 6 ie (OO) ok ks oo Moe co he
Order of Civil Aeronautics Board Approving Increases in
Liability Limitations of Warsaw Convention and Hague
PURE +. 6.0 0 64 5s TERS Oe eee rere
iV
Index to Appendix
Opinion of the United States Court of Appeals
for the Second Circuit ........ 0.00... coeecccceececeeecceccccccc. la
Decision of the Court of Appeals on
Motion for rehearing in banc .............\.cccc000-0000-..... 13a
Amended Memorandum, Order and Judgment
of the United States District Court,
Eastern District of New York
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1992.
#
THE ESTATE OF ALBERTO OSPINA BY HIS EXECUTOR,
THOMAS C. COUGHLIN, and MARGOTH OSPINA and
WILLIAM OSPINA and TAMARA OSPINA,
Petitioners,
against
TRANS WORLD AIRLINES, INC..
Respondent,
FRIGITRONICS INC..,
Intervenor.
&
MOHSEN YOUSSEF,
Petitioner,
against
TRANS WORLD AIRLINES, INC.
Respondent. !
Petition for a Writ of Certiorari to the United States Court
of Appeals for the Second Circuit
l
The caption contains the names of all of the parties to
the proceedings below.
5
-
The petitioners The Estate of Alberto Ospina by his
Executor, Thomas C. Coughlin, and Margoth Ospina and
William Ospina and Tamara Ospina and Mohsen Youssef
(collectively "“petitioners") respectfully pray for a writ of
certiorari to review the decision of the United States Court of
Appeals for the Second Circuit filed on September 3, 1992.
Opinions Below.
The majority and dissenting opinions in the United
States Court of Appeals for the Second Circuit are reported at
975 F.2d 35.
The decision of the United States District Court for the
Eastern District of New York is reported at 778 F. Supp. 625.
The above officially reported opinions are reproduced
in the appendix hereto. In addition, in view of the evidence
related to sensitive airline security information, District Judge
Nickerson, who was sitting by designation, filed an unreported
supplemental dissenting opinion under seal with the Court. For
national security reasons, that supplemental opinion is not
reproduced in petitioners’ appendix.
Jurisdiction.
On September 3, 1992, the United States Court of
Appeals for the Second Circuit by a 2-1 decision reversed the
jury’s verdicts in petitioners’ favor awarding compensatory
damages for personal injury and wrongful death and held that
petitioners’ recovery was limited to $75,000 under the Warsaw
Convention.
3
Petitioners’ timely motion for rehearing or rehearing in
banc was denied by the United States Court of Appeals and
entered therein on December 2, 1992.
This petition for certiorari timely was filed within 90
days of the United States Court of Appeals’ denial of peti-
tioners’ motion for rehearing.
This Court’s jurisdiction is invoked Pursuant to 28
U.S.C. § 1254(1).
Statutes Involved.
The Warsaw Convention, 49 U.S.C. § 1502 (note),
provides in relevant part:
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 passen-
ger, 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 disembark-
ing.
4
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.
~ bead baad
Article 25
(1) The carrier shall not be entitled
to avail himself of the provisions of this
Convention which limit his liability, if
the damage is caused by his wilful mis-
conduct 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 willful
misconduct.
Order of Civil Aerenautics Board
Approving Increases in Liability Limitations
of Warsaw Convention and Hague Protocal.
Adopted by the Civil Aeronautics Board at its
office in Washington, D.C., on the 13th day of
May, 1966.
By this agreement, the parties thereto
bind themselves to include in their tariffs,
effective May 16, 1966, a special contract in
5
accordance with Article 22(1) of the Convention
or the Protocol providing for a limit of liability
for each passenger for death. wounding, or
other bodily injury of $75,000 inclusive of legal
fees, . . 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 stop-
ping place. The parties further agree to provide
in their tariffs that 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
the Convention or the Convention as amended
by the Protocol.
Saad Saad Saad
49 U.S.C.A. § 1502 (note) at 437.
Statement of the Case.
Petitioners invoked the subject-matter jurisdiction in the
United States District Court in the Eastern District of New
York under the Warsaw Convention, 49 U.S.C. § 1502 (note),
Article 28(1), and based on the parties’ diversity of citizenship
and the amount in controversy under 28 U.S.C. § 1332.
This case involves the proper interpretation and
application of the legal standard of “willful misconduct"
contained in the Warsaw Convention. The record evidence of
Trans World Airline’s ("TWA") deliberate or, at a minimum,
6
reckless acts and omissions is substantial and convincing.
Indeed, the evidence was so found by a unanimous jury, the
presiding District Court judge and the dissenter on the circuit
panel. As discussed below, the circuit panel majority applied
an unprecedented, erroneously narrow interpretation of the
"willful misconduct" standard, thereby creating a conflict with
interpretations by the District of Columbia and Eleventh Circuit
Courts of Appeals. The circuit panel also erroneously and
unfairly substituted its view of the evidence for that of the
unanimous jury and presiding judge below, thereby triggering
a need for this Court to exercise its power of supervision.
A bomb which was carried aboard TWA Flight 840 out
of Cairo by terrorist May Elias Mansour ("Mansour") exploded
near Athens airport on April 2, 1986 killing Alberto Ospina
and injuring several passengers, including Mohsen Youssef.
The evidence established that TWA had identified Mansour as
a possible terrorist (Known in the industry as a "profile
selectee") because she met certain security criteria developed
by TWA and the FAA. Nevertheless, in its haste to add one
more passenger to the flight, which was about to depart, TWA
deliberately decided to allow Mansour to board the plane
without enforcing its requirement, agreed to with the U.S.
Government, that all passengers be subjected to redundant
screening by TWA personnel. Mansour was thus screened
only by Egyptian personnel who had been determined by the
U.S. Government and by TWA to be untrustworthy due to
corruption and known complicity with terrorists. Mansour’s
person and carry-on bag were never electronically screened or
checked by hand-held metal detectors by TWA and the bomb
She was carrying was not discovered.
TWA’s deliberate failure to carry out its preboarding
screening process on a suspected terrorist, standing alone,
7
constituted willful misconduct sufficient to impose liability on
TWA for compensatory damages above the $75,000 Warsaw
Convention limits. The jury so found, and that finding of
willfulness was also supported by numerous other facts,
including the proof that despite TWA's responsibility to
"thoroughly" search all cabins at originating stations in that
part of the world due to heightened terrorist activity, TWA in
fact had no procedures in place which would uncover a bomb
once it was brought onto a flight. Despite this evidence, the
circuit panel in this case held by a 2 to 1 vote (Nickerson, J.
dissenting) that no reasonable jury could have found TWA’s
conduct to be willful and reversed the judgment below. We
submit this was error. As aptly stated by Judge Nickerson in
his dissenting opinion at pp. 5, 6, 7 (10a- 12a)’:
TWA’s abandonment of an established
screening procedure was not the result of
inadvertence or negligence. It was a delib-
erate action made with full knowledge of the
probable consequences. In a word, it was
willful.
~ * *
Redundant screening by TWA was not some
unimportant matter instituted out of caprice
or whim. Common sense suggests that it
was implemented for some purpose. As
evidenced by TWA’s continuation of redun-
dant screening over the years and by other
information which remains under seal, it
2 Numbers in parentheses refer to pages in petitioners’
appendix annexed hereto.
a
8
was not something that TWA regarded as
trivial or cosmetic. TWA knew it had to
rely on its own defenses.
—_ * =
[T]he record shows that once TWA
decided to abandon the requirement for
redundant screening, TWA had no adequate
procedures in place to repair the breach.
This fact simply emphasizes the importance
of TWA’s preboarding screening.
4 * ~~
I do not agree that the Warsaw Convention
Shelters TWA from liability when it willfully
acts to abandon a screening procedure im-
plemented by agreement with the United
States government, a procedure that TWA
knew under the agreement it “had to con-
tinue" and that TWA itself deemed essential.
REASONS FOR GRANTING THE WRIT.
Every day thousands of American citizens are passengers
on international flights of United States air carriers. These
Americans are a prime target of terrorist groups who would
view the destruction of a United States flight and the death of
its passengers and crew as a great achievement in the further-
ance of their political ends. This country thus has a strong
public interest in requiring carriers such as TWA to develop
and implement safety measures to protect American passengers
against terrorist attacks on international flights.
9
In his dissent below, Justice Nickerson succinctly framed
the issue on appeal as follows:
"[T]hese cases present not just an issue of whether there
was sufficient evidence to support the jury verdict, but also an
important question of law which has serious implications for
the safety of passengers on United States international air
carriers.
"That question of law is whether such a carrier should
receive shelter from liability under the Warsaw Convention if
it deliberately and willfully abandons procedures for screening
passengers that it had agreed with the United States government
to follow, and indeed had considered essential and had fol-
lowed for many years." (Dissenting Opinion of Judge Nicker-
son at pp. 1-2.) (7a-8a)
The Circuit Court’s decision
conflicts with other Circuits
This Court should grant petitioners’ writ because the
decision rendered by the Court below is in conflict with
decisions by the United States Courts of Appeals for the
District of Columbia Circuit and the Eleventh Circuit. This
Court should also grant petitioners’ writ in the proper exercise
of its power of supervision because the court below so far
departed from the accepted role of an appellate court by
substituting its view of the evidence for that of the fact finders
and in reversing the jury’s findings, which were confirmed by
the presiding District Court judge, of willful misconduct by
TWA.
Willful misconduct in the context of the Warsaw Conven-
tion is defined as the intentional performance or omission of an
i B
10
act (1) with knowledge that the performance or omission of that
act will probably result in damage or injury or (2) in a manner
from which could be implied a reckless disregard for the
probable consequences of the performance or omission of the
act. Pekelis v. Transcontinental & Western Air, Inc., 187
F.2d 122, 124 (2d Cir. 1951).
Here, a unanimous jury found sufficient evidence to
support a verdict of willful misconduct against TWA. There-
after, Judge Weinstein refused to set aside the verdict. Al-
though Judge Weinstein admittedly did not specifically recite
the extensive evidence supporting a finding of liability against
TWA, the record clearly shows that Judge Weinstein was a
vigilant participant in the trial and he unequivocally concluded
that "the jury verdicts, finding TWA’s delicts the equivalent of
willful misconduct, were more than justified," and that
Mansour “was allowed aboard in flagrant violation of many
basic security measures." (17a) To the extent Judge Weinstein
did not recite the many facts upon which a finding of liability
rests, Judge Nickerson clearly and completely did so in his two
dissenting opinions on appeal.
Petitioners respectfully submit that the unanimous jury,
Judge Weinstein and Judge Nickerson all correctly concluded
that a finding of willful misconduct and not mere negligence is
amply supported by the evidence. Given the importance of the
public policy issues presented herein, the conflict between the
standard of “willful misconduct" articulated by the circuit panel
in this case and the standard articulated in other circuits, and
the difference of opinion between the two majority judges and
all of those noted above who have found that the evidence
supports a finding of liability here against TWA, petitioners
respectfully submit that this case should be reviewed on a writ
of certiorari.
11
The circuit panel majority's decision articulates an
unprecedented test as to what constitutes "willful misconduct."
According to the panel, the test of "willful misconduct"
involves whether the airline has "complied with all positive
FAA safety procedures and regulations as well as the laws of
the countries" in which the airline operates. Nothing in the
text or legislative history of the Warsaw Convention justifies
such a narrow construction -- nor has any prior court reached
such a conclusion.
In fact, the text of the Warsaw Convention indicates just
the opposite, namely, that an airline must prove that it took all
necessary steps to avoid injury or that it was impossible to do
so -- not that it simply complied with existing adminstrative
regulations and foreign safety laws. Thus, the Convention
expressly provides in part that "[t]he 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." 49 U.S.C. § 1502 (note),
Article 20(1) (emphasis added.).
Indeed, prior cases from other circuits have implicitly
analyzed the airline’s liability for "willful misconduct" based
on whether the evidence indicated that the airline took all
necessary measures to avoid the injury or that it was impossible
to take such measures.
In KLM vy. Tuller, 292 F.2d 775 (D.C. Cir. 1961), a
unanimous panel in the District of Columbia specifically
refused to be bound by the limits of the Irish government’s
regulations as to when life vest instructions should be given to
fulfill the duty of care the airline owed to its passengers. Id.
at 779. The court further concluded that a jury could reason-
ably find willful misconduct based on a radio officer’s failure
12
to send a "Mayday" distress signal in the seconds before the
aircraft crashed when he was thrown from his seat because he
was not wearing a seatbelt. The court also concluded that a
jury could reasonably find willful misconduct based on various
"plainly available" alternatives to the crew to rescue a passen-
ger stranded on the tail of the airplane. Id. at 780.
Similarly, in Butler v. Aeromexico, 774 F.2d 429 (11th
Cir. 1985), the Eleventh Circuit Court of Appeals did not
measure the airline’s conduct based upon "positive FAA safety
procedures and regulations" and the laws of the countries in
which the airline operated. Instead, the court determined
whether there was "substantial and convincing" evidence to
support the inference "that the crew had intentionally per-
formed acts with knowledge that under the circumstances injury
might result." Id. at 431. The court then discussed the series
of negligent acts or omissions by the crew leading to the crash
and the fatal outbreak of fire. Id. at 431-32.
In both cases above, the standard of willful misconduct
was based on an analysis of a series of instances of negligence
which led to a reasonable inference that the airline had acted
with "reckless disregard of the consequences” or "a deliberate
purpose not to discharge some duty necessary to safety." In
neither case was there evidence, as in this case, that the airline
had willfully abandoned a safety procedure implemented by
agreement with the United States government, which the airline
knew under the agreement it "had to continue" and which the
airline itself deemed essential. Thus, the evidence adduced in
this case presents a much more substantial and convincing case
of “willful misconduct" by the airline and should not have been
the vehicle for the circuit panel to articulate an unprecedented,
narrow construction of that legal standard.
13
The circuit panel focused on the evidence that TWA
failed to use two procedures to search the cabin of the plane
which, if used by TWA, would have uncovered the bomb that
exploded on Flight 840. The Court’s decision reveals that the
majority apparently misapprehended petitioners’ arguments and
overlooked the evidence of TWA’s "willful" misconduct, which
evidence was clearly identified and described by Judge Nicker-
son in his dissenting opinion.
The evidence of TWA’s "willfulness"
Petitioners do not claim that willfulness was shown solely
by TWA’s failure to check the plane cabin with bomb detecting
dogs or to search under Mansour’s seat cushion during the
layover in Rome -- although there clearly was evidence that
such procedures were called for and were recognized by TWA
as necessary at the Rome airport at that particular time when
terrorist threats against the United States were intense. In
April, 1986, TWA knew of an extraordinary threat to security
due to escalating conflict between the United States and Libya,
resulting in public terrorist-threats against civilians and causing
the FAA to warn air carriers to take immediate steps to ensure
that their security programs were working properly and
effectively.
The evidence of TWA’s "willful" misconduct lies in its
intentional abandonment of an established redundant screening
procedure which TWA itself had decided was necessary at the
Cairo airport (9a). After TWA Flight 847 was hijacked in
June 1985, TWA contracted with Control Risk, a security firm,
to conduct a review of TWA’s security at several airports
including Cairo. Control Risk’s written report concluded that
TWA had to "look to (its) own defenses" at the Cairo airport
because of the high degree of corruption and the influence of
14
fundamentalist political activity reaching into the armed
services and police, which were responsible for airport
security. Thus, because TWA knew Egyptian security was
untrustworthy, TWA developed a system of redundant screen-
ing of all passengers (not just profile selectees) using its own
hand-held metal detectors and hand baggage x-ray screening
machines. To protect the traveling public, TWA agreed with
the United States government to assume responsibility for
filling the void created by the untrustworthy Egyptian security.
TWA’s abandonment of the redundant screening in this
case constituted "willful" misconduct because the redundant
screening procedure was deliberately and incredibly abandoned
with an individual whom TWA’s own employees had identified
as a possible terrorist (See 8a-9a). Ms. Mansour, the terrorist,
who immediately after the bombing appeared on Lebanese
television gloating about it, had been identified by TWA as a
“profile selectee" according to security criteria developed by
TWA and the FAA.
Mansour arrived at the airport only 30 to 40 minutes
before the scheduled departure. TWA’s lead customer service
agent in Cairo, Hany Silwanis, recognized immediately simply
from looking at Mansour’s ticket and passport that she was a
profile selectee and marked her boarding pass with a "P"
identifying her as such. Silwanis then informed another TWA
employee, Azzab, that Mansour was a profile selectee and
stressed that she should be thoroughly searched and screened.
After the untrustworthy Egyptian screening was completed,
Azzab brought Mansour to Gate 2 for TWA’s own screening.
However, Egyptian authorities had closed Gate 2 because TWA
had told them the boarding for the flight was finished.
— —_
15
At this point, TWA did not ask the Egyptian authorities
to reopen Gate 2 so that Mansour could be thoroughly searched
and screened by TWA’s own personnel, as TWA itself knew
was necessary; nor did it tell Mansour that she would have to
take the next flight. Instead, Mansour was driven by TWA to
Gate 5 and allowed to be screened by the untrustworthy
Egyptian authorities. Thus, TWA raced Mansour through the
screening process, deliberately abandoning its own screening
of a suspected terrorist, in an apparent effort to add one more
passenger to the manifest (only 17 people were aboard a plane
that carries about 140 people) and to avoid delaying the plane's
departure.
As Judge Nickerson noted in his dissent, TWA’s total
lack of any security procedures beyond its redundant screening
highlights the importance of that redundant screening and
TWA’s recklessness in deliberately abandoning it, particularly
since it was abandoned to rush a suspected terrorist onto the
plane (10a). The deliberate abandonment of the redundant
screening arguably might not have constituted willful negli-
gence if TWA had implemented any of several known backup
safety precautions. However, once Mansour was allowed to
board the plane without redundant screening, the success of her
mission was virtually guaranteed because TWA had failed to
adopt any of the known security measures to repair the breach
in security.
TWA thus had no policy or practice of advising the in-
flight crew or those responsible for searching the aircraft that
a profile selectee had boarded. The crew on Mansour’s flight
was therefore not told that she was a potential terrorist; nor did
it know the significance of the "P" on her boarding pass.
Likewise, the crew charged with "thoroughly searching" the
plane was not told that seat 10-F had been occupied by a
16
potential terrorist so that they could simply lift her seat cushion
and search the cabin in her vicinity to ensure that she had not
left a bomb behind (See lla). The FAA required airlines,
including TWA, to thoroughly search planes for known threats
The evidence at trial showed that the only way to find bombs
placed under seat cushions was to lift the cushions or use dogs.
Judge Nickerson succinctly summarized the evidence of
TWA’s "willfulness":
The breakdown in TWA’s security system
first occurred when the TWA employee
decided not to require the redundant screen-
ing. That breakdown might have been re-
paired if the TWA personnel in the cabin
had been advised that Mansour was a profile
selectee, thus posing a special risk, or if
TWA personnel were trained to search for
seat cushion bombs. There was thus a
series of acts and omissions from which a
jury could infer a reckless disregard of the
probable consequences. But the most glar-
ing evidence of willful misconduct was
TWA’s deliberate abandonment of the requi-
site redundant screening done not by Egyp-
tians but by TWA personnel. [Sealed Dis-
senting Opinion at pp. 8-9.]
At a minimum, plaintiffs presented sufficient evidence to
permit a jury to reasonably conclude that TWA’s deliberate
acts "implied a disregard of the probable consequences. "
Republic Nat’! Bank of New York v. Eastern Airlines, 815
F.2d 232, 238-39 (2d Cir. 1987). TWA’s hurriedly escorting
17
Mansour, a profile selectee, through the screening process and
onto the plane in order to add one more passenger and so as
not to delay the departure of the flight constituted an obvious
reckless disregard of the probable consequences of permitting
a terrorist to board the plane unscreened by TWA. TWA’s
deliberate and reckless abandonment of its redundant screening
requirement constituted willful misconduct even if such
screening was not a written requirement of the FAA.
Moreover, although TWA’s redundant screening proce-
dure was not a written requirement of the FAA, the evidence
at trial showed that it was a requirement agreed to by the FAA
and TWA. TWA’s claim that all that was required was
"routine screening" by the Egyptian police rings hollow in the
face of TWA’s own report stating that TWA must "look to [its]
own defenses" because of corruption in the Egyptian police and
its complicity with terrorists.
The fact that TWA’s agreement with the FAA was not in
writing does not make it any less “a positive FAA safety proce-
dure." As Judge Nickerson wrote:
The fact that the requirement was not in
writing does not diminish the significance of
its abandonment. A written requirement
may be easier to prove, but once it is prov-
en the failure to follow a de facto require-
ment or procedure can rise to the level of
18
willful misconduct. Cf. Republic Nat’l
Bank of New York yv. Eastern Airlines, 815
F.2d 232, 239-40 (2d Cir. 1987) (no willful
misconduct for failure to follow de facto
procedures where evidence failed to prove
that defendant adopted such procedures).
Moreover, just because there is no specific regulation or
law of a country requiring certain safety precautions does not
Shield an international airline from liability where circum-
stances mandate that the airline implement such safety mea-
sures -- particularly where the airline by its own past practices
has demonstrated its own belief that such safety measures are
required. See KLM Royal Dutch Airlines v. Tuller, 292 F.2d
775, 779 (D.C. Cir. 1961). That is precisely the case here
with TWA’s redundant screening. That screening had been
TWA’s established practice at the Cairo airport when it was
recklessly abandoned here with Mansour.
Finally, willful misconduct can also be based on the
cumulative effect of a number of acts or omissions. As the
Second Circuit Court of Appeals stated in Tug Ocean Prince,
Inc., 584 F.2d 1151 (2d Cir. 1978):
It is . . . the combination of factors which
together indicate a probable consequence of
damage resulting from several failures to
act, and by continuing to fail to act in the
face of that probability, that indicates a
reckless disregard of the consequences.
While any one of the faults . . . [of the air
carrier] alone may noi constitute ‘willful
misconduct,’ on the entire record the various
inactions and gross disregard of the potential
19
harm amount... to willful misconduct. .
Id. at 1164.
Here, as discussed above, TWA’s deliberate abandonment
of its redundant screening when faced with a suspected terrorist
at a high-risk airport at a high-risk time was particularly
reckless given TWA’s complete failure to implement any of the
known backup security measures once Mansour was allowed on
board the plane. If the failure to screen Mansour, standing
alone, did not constitute willful misconduct, and petitioners
submit it did, then wiilfulness was clearly established in this
case when the cumulative effect of TWA’s various other
"inactions and gross disregard of the potential harm" are
considered. Tug Ocean, supra.
The Circuit Court improperly
substituted its judgment for
that of the Jury
In the proper exercise of this Court’s power to supervise
the inferior courts of the United States, this Court should grant
petitioners’ writ so as to right the injustice committed by the
circuit court. As briefly shown above, the jury’s finding of
"willful misconduct" was clearly supported by substantial
evidence adduced at trial. Although a different conclusion
might also have been reasonable, that was not the proper
standard of appellate review. The circuit court majority’s
decision itself plainly shows that, while recognizing that the
case involved a necessarily fact-specific inquiry, it simply drew
a different inference from the evidence and believed that
another conclusion was more reasonable. This was an egre-
gious error that should be corrected by this Court.
20
As this Court held in the seminal case of Lavender v.
Kur, 327 U.S. 645 (1946):
Ii is no answer to say that the jury’s verdict
involved speculation and conjecture. When-
ever facts are in dispute or the evidence is
such that fair-minded men may draw differ-
ent inferences, a measure of speculation and
conjecture is required on the part of those
whose duty it is to settle the dispute by
choosing what seems to them to be the most
reasonable inference. Only when there is a
complete absence of probative facts to sup-
port the conclusion reached does a reversible
error appear. But where, as here, there is
an evidentiary basis for the jury’s verdict,
the jury is free to discard or disbelieve
whatever facts are inconsistent with its
conclusion. And the-appellate court’s func-
tion is ¢xhausted when that evidentiary basis
becomes apparent, it being immaterial that
the court might draw a contrary inference or
feel that another conclusion is more reason-
able. 327 U.S. at 653. See also Dennis v.
Denver & Rio Grande Western Railroad,
Co., 375 U.S. 208, 210 (1963).
Accordingly, petitioners respectfully request this Court to
grant their writ in the proper exercise of its supervisory powers
in view of the injustice caused by the circuit court majority’s
unprecedented interpretation of the Warsaw Convention and its
egregious departure from the proper role of an appellate court
in reviewing a jury’s factual finding.
21
—
Conclusion.
For the foregoing reasons, the petition for a wnit of
certiorari should be granted.
Dated: New York, New York
March 2, 1993
SIFF ROSEN P.C.
Ignatius John Melito
S. Dwight Stephens
Of Counsel
Addds
Respectfully submitted,
FREDRIC LEWIS, ESQ.
7 Dey Street
New York, New York 10007
(212) 227-3900
Attorney for The Estate of
Alberto Ospina
GILMAN, OLSON & PANGIA
1815 H. Street, N.W. #600
Washington, D.C. 20006
(202) 466-5100
Attorney for Mohsen Youssef
ee ae ee eee ss Se ee. le eee ee eee ee ee! eer?
—oeeeeee
la
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
a
Nos. 1134, 1155—August Term, 199]
(Argued May 21, 1992 Decided September 3, 1992)
Docket Nos. 91-9245, 91-9247
a
ALBERTO OSPINA, deceased, by his executors, Thomas
C. Coughlin, Margoth Ospina and Tamara Ospina,
Plaintiff-Appellee,
—_v.—
TRANS WORLD AIRLINES, INC.,
Defendant-Appellant,
FRIGITRONICS INC.,
Intervenor.
MOHSEN YOUSSEF,
Plaintiff-Appellee,
—_vVvV.—
TRANS WORLD AIRLINES, INC.,
Defendant-Appellant,
2a
FRIGITRONICS INC.,
Intervenor.
Before:
MESKILL, Chief Judge, PRATT, Circuit Judge,
and NICKERSON,”* District Judge.
—
These are consolidated appeals from judgments of the
United States District Court for the Eastern District of
New York, Weinstein, J., after jury verdicts in plaintiffs’
favor. Defendant Trans World Airlines, Inc. argues that
insufficient evidence existed to support the finding of
willful misconduct necessary to impose liability in excess
of that allowed under the terms of the Warsaw Conven-
tion.
Reversed. Judge Nickerson dissents in a separate opin-
ion and filed a supplemental dissenting opinion under
seal.
JOHN N. ROMANS, New York City (Michael J.
Crofton, Lawrence S. Rosen, Joan E.
Lambert, Katten Muchin & Zavis, New
York City, of counsel), for Appellant
TWA.
* Honorable Eugene H. Nickerson, United States District Judge for the
Eastern District of New York, sitting by designation.
3a
FREDRIC LEWIS, New York City, for Appellee
Estate of Alberto Ospina.
NICHOLAS GILMAN, Washington, D.C.
(Gilman, Olson & Pangia, Washington,
D.C., of counsel), for Appellee Mohsen
Youssef.
MESKILL, Chief Judge:
This case involves the precautions that airlines must
take in order to receive the shelter from liability that the
Warsaw Convention provides to carriers in all cases
except those involving willful misconduct, see 49 U.S.C.
app. § 1502 note. Trans World Airlines, Inc. (TWA)
argues that insufficient evidence existed to support the
jury’s finding of willful misconduct. We agree with TWA
and reverse the district court’s denial of TWA’s motions to
set aside the verdicts.
BACKGROUND
As TWA Flight 840 approached Athens’ airport on
April 2, 1986, a bomb exploded, killing four passengers
and injuring others. Although the bomb created a large
hole in the fuselage, the airplane landed safely. The Judi-
cial Panel on Multidistrict Litigation consolidated the
ensuing suits, which were referred to the United States
District Court for the Eastern District of New York, Wein-
stein, J. All of the suits settled, with the exception of the
two now before this Court on appeal. Plaintiff Youssef,
who was seated some distance from the explosion, suf-
fered injuries. Plaintiff Ospina, who was seated near the
ea se ot ae tg,
US eS AD
Le Re ey ee ee ERO ee eee
da
bomb, was blown out of the airplane and died. Both
actions seek damages from TWA. After a bifurcated trial,
judgments were entered in plaintiffs’ favor.
The importance of the information in this case to the
security and safety of commercial airlines and their pas-
sengers requires extraordinary treatment. Prior to the
commencement of the liability phases of the proceeding
below, the United States made a limited appearance in the
action for the purpose of expressing its concerns about the
disclosure, discussion and evaluation of airline security
materials. So as not to jeopardize the safety of the trav-
eling public, the district court ordered that the trial be
closed to the public at such times as sensitive, anti-ter-
rorist airline security information was to be disclosed, dis-
cussed or evaluated. Although the press had the right to
review daily copy of the trial transcript, the United States
received an initial opportunity to redact those portions of
the transcript containing sensitive airline security infor-
mation. At the conclusion of the trial, some exhibits were
made available to the public while others—namely, those
concerning sensitive information—were filed under seal.
The jury returned verdicts in plaintiffs’ favor. The dis-
trict court refused to set aside the verdicts or to grant a
new trial. In rejecting TWA’s motions, the district court
did not reveal those facts on which liability rested.
Instead, it stated that “[i]t is enough to say that the jury
verdicts, finding TWA’s delicts the equivalent of willful
misconduct, were more than justified.” Thereafter, prior
to our hearing of this appeal, TWA moved this Court for
an order requiring that appendices and briefs in these
appeals be filed under seal. We granted the motion
Sa
DISCUSSION
The parties agree that the Warsaw Convention, a mul-
tilateral treaty governing the international Carriage of pas-
sengers, baggage and cargo by air, see Chan v. Korean Air
Lines, 490 U.S. az, 123-24 (1989), governs this Case.
The Convention’s Overriding purpose was “to jimit air
Carriers’ potential liability in the event of accidents.” Jn
re Air Disaster at Lockerbie, Scotland, 928 F.2d 1267,
1270 (2d Cir.) (citations Omitted), cert. denied, 112 S.Ct.
331 (1991). Toward this end, Article 17 of the Conven-
tion, as modified by the Montreal Agreement, limits car-
rier liability to $75,000 per claimant. See 928 F.2d at
1280. However, Article 25 of the Convention provides
that a plaintiff may recover compensatory damages if he
can show that the carrier engaged in willful misconduct.!
Plaintiffs’ theory at trial was that TWA wrongfully
neglected to perform certain acts that could have pre-
vented the bombing. To be held culpable for willful mis-
conduct in a case based on an omission, the defendant
“must either have known that [the omitted act] was nec-
essary for safety, or his duty to [perform the omitted act]
must have been so obvious that in failing to [perform] it
his conduct would be reckless, rather than negligent.”
Pekelis v. Transcontinental & Western Air, 187 F.2d 122,
125 (2d Cir.) (footnote omitted), cert. denied, 341 U.S.
951 (1951). Thus, plaintiffs needed to show that TWA
Omitted to do an act (1) with knowledge that the omission
1 Article 25 (1) provides as follows:
The carrier shall not be entitled to avail himself of the provisions of
this convention which exclude or limit his liability, if the damage is
caused by his willful 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.
49 U.S.C. app. § 1502 note.
a,
6a
of that act probably would result in damage or injury, or
(2) in a manner that implied a reckless disregard of the
probable consequences. See Republic Nat'l Bank of New
York v. Eastern Airlines, 815 F.2d 232, 238-39 (2d Cir.
1987). A lesser standard would undermine the purpose of
the Convention and would contradict Article 25(1)’s plain
language.
TWA argues that a reasonable jury could not have
found “willful misconduct” in this case. In reviewing the
verdict to determine if it could have been produced by a
reasonable jury, we view the evidence in the light most
favorable to the non-moving parties and give them the
benefit of all inferences that the evidence supports. See,
e.g., Continental Ore Co. v. Union Carbide & Carbon
Corp., 370 U.S. 690, 696 (1962).
TWA stresses that it complied with Federal Aviation
Administration (FAA) procedures and the laws of each
country in which it operated. Plaintiffs counter by point-
ing to a threat that existed on Flight 840 and by empha-
sizing certain acts not performed by TWA that they claim
TWA should have performed, which acts, plaintiffs claim,
might have led to detection of the bomb that caused their
injuries. In making this argument, plaintiffs emphasize
that the FAA required airlines thoroughly to search the
cabin and cockpit areas of airplanes to eliminate any hid-
den weapons, and that TWA failed to utilize two proce-
dures which, although not specifically required by the
FAA, would have uncovered the bomb that exploded on
Flight 840.
As it did below, this case turns on whether plaintiffs
introduced sufficient evidence to support the jury’s ver-
dict in plaintiffs’ favor, a necessarily fact-specific inquiry.
However, due to the unusual circumstances of this case,
acts and omissions constituted willful misconduct. TWA’s
failure to take certain measures in searching the cabin—
CONCLUSION
The parties raise a num ber of other issues that do not
affect our decision, and we need not reach them. The
judgment of the district court is reversed.
——
NICKERSON, District Judge, dissenting:
In my opinion these Cases present not just an issue of
whether there was sufficient evidence to support the jury
8a
verdict, but also an important question of law which has
serious implications for the safety of passengers on
United States international air carriers.
That question of law is whether such a carrier should
receive shelter from liability under the Warsaw Conven-
tion if it deliberately and willfully abandons procedures
for screening passengers that it had agreed with the
United States government to follow, and indeed had con-
sidered essential and had followed for many years.
The District Judge concluded that “the jury verdicts,
finding TWA’s delicts the equivalent of willful miscon-
duct, were more than justified,” and that the terrorist “was
allowed aboard in flagrant violation of many basic secu-
rity measures.”
Because of a concern that if hijackers learned of the
security arrangements at the Cairo Airport and on the
TWA aircraft they would be able to circumvent them, the
District Court excluded the public and the press during
those portions of the trial where the testimony related to
“sensitive airline security information.” Those portions
remain sealed, and this opinion does not refer to them. |
here discuss only that evidence which the District Court
did not consider sensitive. In a supplemental dissenting
opinion filed under seal I mention certain sealed matters
pertinent to the issues.
TWA’s willful misconduct did not consist merely of the
neglect to use certain search procedures on the aircraft. Of
the flagrant violations of security measures mentioned by
the District Court, I will address here only one.
Although the terrorist was a “profile selectee” requir-
ing careful screening, TWA allowed her aboard after
deliberately deciding not to enforce a screening require-
- | | | — '
9a
ment agreed upon by the United States government and
TWA. That requirement was for “redundant screening” by
TWA itself, not by Egyptian personnel, of all passengers
(not just profile selectees).
The testimony of Billie H. Vincent makes clear that
there was such a requirement. Vincent was no ordinary
Citizen. He had spent almost thirty years in the Federal
Aviation Administration (FAA) and since 1982 had been
its director of the Office of Civil Aviation Security, retir-
ing only a few months after April 2, 1986, the date of the
incident at issue.
Under Egyptian law, only Egyptian authorities were
permitted to search physically passengers at the Cairo
Airport. But as Vincent testified, “as a result of the deter-
mination by TWA and the U.S. government” that the local
“security was inadequate” at Cairo, there was put in effect
some years before 1986 a requirement for United States
air Carriers to conduct redundant screening in Cairo of all
passengers, not just profile selectees.
According to Vincent it was “clearly undersioed”
between himself and the TWA officials that the redundant
screening by TWA “had to continue.” Although the
requirement for such screening was not formalized as a
regulation, TWA recognized it as essential and in fact
continued it over the years.
Quite plainly the requirement was implemented and
continued because TWA and the United States govern-
ment regarded the inspection by Egyptian personnel as
insufficiently trustworthy to assure the safety of the pas-
sengers and crew. By April 2, 1986, the requirement was
still in effect, and in fact had assumed added significance
due to increased terrorist activities in the Middle East and
elsewhere.
10a
But on the day of this incident TWA, acting through its
agents, knowingly and deliberately decided to abandon
that requirement. TWA did this even though it knew that
the woman was no ordinary passenger but a “profile
selectee” posing a special risk.
TWA took the profile selectee to the gate at which it
was equipped to do its own “redundant screening.” But
the gate was closed. TWA did not ask the Egyptians to
reopen it. Nor did TWA tell the profile selectee that she
could not leave on the flight because TWA was unable to
screen her in time. Instead, evidently in haste to add one
more passenger to the manifest, the TWA agent went with
her to a gate where TWA was unequipped to supplement
the screening by Egyptians with its own, more reliable
procedures. The Egyptians took her into a private booth
for screening. No one testified as to exactly what was said
or what happened in that booth, or as to the extent, if at
all, that the Egyptians searched her or her handbag. She
was then allowed by TWA to board the airplane.
Some things are clear. TWA never electronically
screened her carry-on bag or its lining. TWA did not
check her person or bag with metal detecting hand wands.
All this could and presumably would have been done if
TWA had adhered to its established procedure agreed
upon with the United States government and had taken
her through the required redundant TWA screening. In
turn, that redundant screening could presumably have
detected the components for the bomb.
TWA’s abandonment of an established screening pro-
cedure was not the result of inadvertence or negligence.
It was a deliberate action made with full knowledge of the
probable consequences. In a word, it was willful.
lla
The fact that the requirement was not in writing does
not diminish the significance of its abandonment. A writ-
ten requirement may be easier to prove, but once it is
Proven the failure to follow a de facto requirement or pro-
cedure can rise to the level of willful misconduct. &
Republic Nat’! Bank of New York v. Eastern Airlines, 815
F.2d 232, 239-40 (2d Cir. 1987) (no willful misconduct
for failure to follow de facto procedures where evidence
failed to prove that defendant adopted such procedures).
Redundant screening by TWA was not some unimpor-
tant matter instituted out of Caprice or whim. Common
sense suggests that it was implemented for some purpose.
As evidenced by TWA’s continuation of redundant screen-
ing over the years and by other information which
remains under seal, it was not something that TWA
regarded as trivial or cosmetic. TWA knew it had to rely
On its own defenses.
There were reasons why the United States and TWA
regarded the Egyptian security procedures as untrust-
worthy. I cannot describe in this unsealed opinion the evi-
dence of those reasons. It is enough to say that the
specifics now held secret fully justified that lack of trust.
No single person at TWA was aware of all of the cir-
cumstances of the boarding of the profile selectee. But the
“willful misconduct” of TWA must be evaluated in light
of the circumstances known to its employees, managers,
and agents, collectively. At least one of those employees
charged with responsibility for security made the decision
to abandon the screening by TWA personnel and to leave
the passengers at the mercy of Egyptian personnel known
by TWA to be untrustworthy.
Although I cannot discuss the details in this unsealed
Opinion, the record shows that once TWA decided to
12a
abandon the requirement for redundant screening, TWA
had no adequate procedures in place to repair the breach.
This fact simply emphasizes the importance of TWA’s
pre-boarding screening.
I do not agree that the Warsaw Convention shelters
TWA from liability when it willfully acts to abandon a
screening procedure implemented by agreement with the
United States government, a procedure that TWA knew
under the agreement it “had to continue” and that TWA
itself deemed essential.
I would therefore affirm the judgment of the district
court.
13a
UNITED STATES COURT OF APPEALS
FOR THE
SECOND CIRCUIT
X
ALBERTO OSPINA. :
Petitioner- Appellant, : Docket Nos.
- against - > 91-9245
TRANS WORLD AIRLINES, INC..
United States
Respondent- Appellee, : Court of Appeals
: Filed
FRIGITRONICS, INC.. : December 2,
; 1992
Second Circuit
Intervenor.
MOHSEN YOUSSEF,
Petitioner-Appellee, . 91-9247
- against - )
TRANS WORLD AIRLINES, INC.,
Respondent-A ppellant.
l4a
A petition for rehearing containing a suggestion that
the action be reheard in banc having been filed in Ospina v.
TWA, 91-9245, by appellant Albert Ospina, and
A petition for rehearing containing a suggestion that
the action be reheard in banc having been filed in Youssef v.
TWA, 91-9247 by appellee Mohsen Youssef,
Upon consideration by the panel that decided the
appeals, it 1s
Ordered that said petitions for rehearing are
DENIED.
It is hereby noted that the suggestion for rehearing in
banc having been transmitted to the judges of the Court in
regular active service and to any other judge that heard the
appeal and a request for an in banc vote having been made
by a judge of the panel, and a poll of the judges in regular
active service having been taken, a majority of the Court has
voted not to reconsider the decision in banc.
ELAINE B. GOLDSMITH, Clerk
lSa
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---X
In re: INFLIGHT EXPLOSION ON Amended
TRANS WORLD AIRLINES, INC. Memorandum.
AIRCRAFT APPROACHING Order, and
ATHENS, GREECE Judgment
ON APRIL 2. 1986
es sas x |
THIS DOCUMENT PERTAINS TO: MDL No. 727 |
(JBW)
OSPINA v. TWA
87 Civ. 1238 IBW) Filed
In Clerk’s Office
and U.S. District
Court E.D.N.Y.
YOUSSEF v. TWA November 21.
87 Civ. 0060 (JBW) 1991 4
————— ne ecnieeeenne x
APPEARANCES:
For the Plaintiffs:
Nicholas Gilman, Esq.
Gilman, Olson & Pangia
1815 H Street, NW, Ste. 600
Washington, D.C. 20006-3604
Fredric Lewis, Esq.
7 Day Street
New York, N.Y. 10007
For the Defendant:
Michael J. Crofton, Esq.
John N. Romans, Esq.
Katten, Muchin & Zavis
40 Broad St., Ste. 2000
New York, N.Y. 10004-2382
ITI.
IV.
VI.
FACTS
16a
TABLE OF CONTENTS
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FEDERAL EMPLOYERS’ LIABILITY ACT......
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DEATH ON THE HIGH SEAS ACT
AND GENERAL MARITIME LAW.................
. POLICIES SERVED BY SURVIVAL RECOVERY
FOR MENTAL AND PHYSICAL INJURY.................
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17a
WEINSTEIN, J.:
I. FACTS
As TWA Flight 840 was approaching Athens airport en
route from Rome on April 2, 1986, a bomb exploded under
one of the seats. Four passengers were killed and others were
injured. Mohsen Youssef, seated some distance from the
explosion, suffered physical and Psychic injury. Alberto
Ospina, seated over the bomb, was blown out of the plane; his
broken body was later found with serious wounds in the lower
torso. Despite a large hole in the fuselage, the plane landed
safely.
A young female terrorist had boarded in Cairo and placed
the bomb under her seat. She was allowed aboard in flagrant
violation of many basic security measures. Compounding
TWA’s gross errors was a failure to search the cabin properly
in Rome, the first stop after Cairo. The terrorist set the bomb
trigger and left the plane in Rome, proceeding to a self-
congratulatory T.V. appearance in Lebanon.
To detail TWA’s neglect would reveal security measures
and information best left unpublished. (When the security
evidence was taken the courtroom was cleared.) It is enough
to say that the jury verdicts, finding TWA’s delicts the
equivalent of willful misconduct, were more than justified.
The award to Youssef is not seriously challenged. It was fully
supported by the record.
The only open issue is the propriety of $2,754,951.60 in
damages awarded to Mr. Ospina’s widow. TWA particularly
attacks an included award of $85,000 for Mr. Ospina’s pain
18a
and suffering as he was being blown out of the plane and was
falling to the ground.
Mr. Ospina was thirty-nine years old, a successful
Colombian-American who was travelling on business when the
accident occurred. He flew all over the world, training
physicians and technicians to use the medical devices his
company produced. He was being groomed for the position of
vice-president in charge of international marketing. The amount
of loss attributable to death was fully supported by the evi-
dence.
Describing the injuries, the Athens Medical Examiner at
the post-mortem examination determined that the body had
been nearly severed by the blast. There were bruises and
abrasions on the skin and multiple fractures of the skull,
sternum, ribs, and lower extremities. First and second degree _
burns covered more than 20% of Mr. Ospina’s body. The
lower body was largely eviscerated. After noting other
injuries, the examiner concluded that "the dismemberment of
the body was made while alive, while the dull injuries were
made postmortally."
TWA made strenuous efforts to challenge the conclusions
of plaintiff's expert, the well-qualified coroner of Westchester
County. The expert insisted that Mr. Ospina probably lived
five to ten seconds after the blast and that he was aware of
what was happening to him. TWA produced no expert on this
issue. Assuming, as we must, that Mr. Ospina knew what was
happening as he was plunging to his death, an award of
$85,000 is not excessive. There was enough evidence to
support the jury’s verdict that Mr. Ospina suffered pain and
extreme psychic damage after he was injured by the bomb, but
before he died.
19a
TWA claims that damages for pain and suffering are
improper under the Warsaw convention. For a variety of
reasons described below, such damages are awardable under
the Warsaw convention.
II. LAW UNDER THE WARSAW CONVENTION
The Warsaw Convention was ratified by the United States
Senate in 1934. It governs air carrier liability for harm to
passengers on international flights. The carrier is liable for
"damages sustained in the event of the death or wounding of a
passenger." Article 17 of the Warsaw Convention 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 sus-
tained took place on board the aircraft or in the
course of any of the operations of embarking or dis-
embarking.
Convention for Unification of Certain Rules Relating to
International Transportation by Air, Oct. 12, 1929, 49 Stat.
3000, T.S. No. 876, entered into force Oct. 29, 1934, re-
printed at 49 U.S.C. App. §§ 1502 (1976). The original
French text reads:
Le transporteur est responsable du dommage sur-
venu en cas de mort, de blessure, ou de toute autre
lesion corporelle subie par un voyageur lorsque
l’accident qui a cause le dommage s’est produit a
bord de l’aeronef ou au cours de toutes operations
d’embarquement et de debarquement.
20a
49 Stat. 3005.
The Montreal Agreement of 1966 modified the Conven-
tion for flights with connecting points in the United States,
raising the limit of liability to $75,000 and eliminating due care
defenses. See Agreement Relating to Liability. Limitation of
the Warsaw Convention and the Hague Protocol, approved by
C.A.B. Order No. E-23680, reprinted at 49 U.S.C. App. §
1502 (1976). So modified, the Warsaw Convention now
subjects international carriers to strict liability for Article 17
injuries sustained on flights connected with the United States.
Under Article 25 of the Convention, the $75,000 limit is
inapplicable where the damage arises from an air carrier’s
willful misconduct." That provision reads:
(1) The carrier shall not be entitled to avail
himself 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 accor-
dance with the law of the court to which the
case is submitted, is considered to be equiv-
alent to wilful misconduct.
49 U.S.C. App. § 1502 (1976). Article 25 applies in this case.
A. FEDERAL CAUSE OF ACTION
For much of its history, the Warsaw Convention was
interpreted as not creating an independent cause of action.
Rather, courts held that the Convention simply created legal
principles to determine recovery for infringements of indepen-
2la
dently created rights. Only in 1978 did the Court of Appeals
for the Second Circuit rule that the Convention creates its own
wrongful death cause of action founded in federal treaty law.
njamins v. British ‘Euro Airways, 572 F.2d 913, 919
(2d Cir. 1978), cert. denied, 439 U.S. 1114 (1979). Other
circuits soon followed. See, €.g., In re Mexico City Aircrash
of October 31. 1979, 708 F.2d 400, 412 (9th Cir. 1983) [T]he
Convention creates an independent cause of action for wrongful
death, a cause of action founded in federal treaty law.");
Boehringer Mannheim-Diagnostics, Inc. v. Pan Am. World
Airways, 737 F.2d 456, 459 (Sth Cir. 1984) (Warsaw Conven-
tion creates controlling cause of action and preempts state law),
cert. denied, 469 U.S. 1186 (1985).
One troubling issue for courts in circuits which recognize
a cause of action under the Convention is the status of State law
claims. Should plaintiffs be permitted to sue under both the
Convention and state statutes? The Second Circuit recently
answered in the negative, holding that a Warsaw Convention
wrongful death action preempts all state law causes of action:
We therefore decline to read into the Convention
any attempt to preserve a right to a state law cause
of action in addition to the action provided under
the Convention itself.
In re Air Disaster at Lockerbie, Scotland on December 21,
1988, 928 F.2d 1267, 1274 (2d Cir. 1991). Explaining its
reasoning, based largely on the need for uniformity, the court
continued:
The way the other parties (to the Convention) have
viewed the Convention, its emphasis on uniformity,
and the need for a single, unified rule on such
224
points as the recoverability of punitive damages lead
to the belief that the Convention should be interpret-
ed as making all actions -- other than those not
based on the Convention -- exclusive under it.
Though resolved in the Second Circuit, the question
whether the Convention preempts state law causes of action is
an open question elsewhere. Chief Judge Mikva has criticized
the In re Lockerbie decision, finding it "astonishing" in light
of earlier precedents. See In re Korean Air Lines Disaster of
September 1, 1983, 932 F.2d 1475, 1492 (D.C. Cir. 1991)
(Mikva, C.J., dissenting in part); see also Calderon v. Aerovi-
as Nacionales de Colombia, Avianca, Inc., 738 F. Supp. 485,
486 (S.D. Fla. 1990) ("[T]he Warsaw Convention, rather than
supplying an exclusive cause of action, provides only an
exclusive remedy for such actions, however founded.")
(emphasis added); Morgan v. United Air Lines, 750 F. Supp.
1046, 1052 (D. Colo. 1990) (state law is not preempted under
the Warsaw Convention).
The Supreme Court has twice declined to decide the issue
of exclusivity under the Warsaw Convention. See Eastern
Airlines v. Floyd, 111 S. Ct. 1489, 1502 (1991); Air France
v. Saks, 470 U.S. 392, 409 (1985) (expressing no view on
whether plaintiffs state negligence action could go forward if
Convention’s liability rules did not apply). In the Second
Circuit, at least, any remedy must be predicated, not on state
law, but on federal common law.
Should the Supreme Court ultimately decide that state law
causes of action continue to be enforceable (contrary to the
Second Circuit view), the conclusion of this memorandum
would be unchanged. Were state substantive law to govern,
the law of New York under applicable federal and state conflict
23a
rules would apply, the parties have in effect conceded. New
York substantive law allows recovery for pain and suffering
prior to death.
B. FEDERAL COMMON LAW
Appellants in In re Lockerbie were appealing lower court
orders which had denied punitive damages under the Warsaw
Convention. One case concerned the hijacking of a Pan Am jet
over Karachi, Pakistan, on September 6, 1986. The other case
stemmed from the notorious bombing of Pan Am Flight 103
over Lockerbie, Scotland, on December 21, 1988.
Having decided that the Convention preempts state
wrongful death causes of action, the Second Circuit next
considered what law applies in suits filed under the Convention
itself. Since the Warsaw convention is a treaty, with the same
stature and effect as a federal statute, the In re Lockerbie court
held that federal law must be applied to construe the Conven-
tion. It wrote:
We look to the source of the right in order to
determine the controlling law. The source of the
right to sue under the Convention is the Convention
itself -- a treaty that only the federal government
has the power to make. . . .
Consequently, the source of the right is federal law
-- in fact, uniquely federal law. It follows then the
substantive law we must apply is also federal law.
24a
In re Lockerbie, 928 F.2d at 1278 (citations omitted; emphasis
in original). The court determined that the applicable substan-
tive law is the law of tort, not contract.
Two other courts have applied federal common law to
cases brought under the Warsaw Convention. In In re Korean
Air Lines Disaster of September 1, 1983, 932 F.2d 1475 (D.C.
Cir. 1991), the D.C. Circuit engaged in an analysis similar to
that of the In re Lockerbie court, applying federal common law
to determine whether plaintiffs were entitled to punitive
damages in a cause of action under the convention. See In re
Korean Air Lines, 932 F.2d at 1484-90 (finding punitive
damages not allowable under the Convention). Another earlier
case, Harris v. Polskie Linie Lotnicze, 820 F.2d 1000, 1003-
04 (9th Cir. 1987), applied federal common law to ascertain
the proper choice of law under the Convention.
In determining the applicable federal common law on the
issue of survival recovery for pain and suffering damages, it is
desirable first to examine the development of the current
United States judicial and legislative consensus.
Ill. WARSAW CONVENTION RECOVERY IN HISTORI-
CAL CONTEXT
A. WRONGFUL DEATH
Wrongful death actions and survival actions are designed
to compensate for different kinds of loss. A wrongful death
award compensates the estate or the family members for the
economic loss they suffer as a result of death, whereas a
survival action continues the injured person’s own claim for
injunmes which accrued before death. The common law did not
25a
recognize either of these claims, and several principles have
been offered in explanation. See generally F. Harper, F.
James & O. Gray, The Law of Torts § 24.1 et seq. (2d ed.
1986).
Under the felony merger doctrine, a tort against another
human being was considered less serious than a crime against
the crown. The crown was the first to exact punishment,
which usually meant that the felon was executed and his
property forfeited. Id. § 24.1, at 455 n.1. Logically, wrongful
death recovery was impossible: nothing of the defendant or his
property remained, even if a victim’s family had been able or
had wanted to pursue a private cause of action. Moreover, at
common law judges had an aversion to placing a value on
something so sacred as human life. See Smedley, Wrongful
Death--Bases of the Common Law Rules, 13 Vand. L. Rev.
605, 613 (1960).
The American colonies did not follow the common law
rule. They required an assailant to pay a sum to the victim’s
family, concomitant to the criminal proceeding, not as a
separate civil action. This departure from the British practice
of denying wrongful death recovery stemmed at least in part
from the peculiar needs of a colonial nation, the absence of
persons learned in the law, and the colonists’ dim understand-
ing of certain of the doctrines brought over from England. See
generally Malone, The Genesis of Wrongful Death, 17 Stan. L.
Rev. 1043, 1063 (1965).
The ascendancy of industry and the railways may explain
why wrongful death actions resurfaced in mid-nineteenth-
century America:
26a
Tragedy as a result of indifference and neglect was
suddenly upon us in the factory, on the city streets,
and on the rails. Nor was the principal villain of
the piece any longer the impecunious felon. In his
place stood the prospering corporation with abun-
dant assets to meet the needs of widows and or-
phans.
Malone, supra, at 1043. The notion of locomotives injuring
the nineteenth-century worker raises an eerie comparison to the
huge jets ferrying twentieth-century workers like Alberto
Ospina around the globe.
The first British wrongful death statute was enacted in
1846. See Fatal Accidents Act (Lord Campbell’s Act), 9 & 10
Vict., ch. 93 (1846). Many American states soon followed,
and every state has now modified the common law rule by
Statute to provide for some kind of wrongful death recovery.
F. Harper, F. James & O. Gray, supra, § 24.1.
B. SURVIVAL
Survival actions are distinct from wrongful death claims,
and are designed to continue whatever action the decedent
would have had, but for his death. A survival action ensures
that a tortfeasor will not do better by killing rather than by
simply injuring. Without a survival action, a defendant escapes
liability for personal injury or pain and suffering at the moment |
the injured plaintiff dies.
Survival actions are designed to avoid another ancient
common law rule: actio personalis moritur cum persona ("a
personal action dies with the person"). See 2 S. Speiser,
27a
Recovery for Wrongful Death § 14.] (2d ed. 1975 & Supp.
1990); see also Livingston, Survival of Tort Actions: A
Proposal for California Legislation, 37 Calif. L. Rev. 63
(1949). This rule is ancient; it was common among the
English courts of the fifteenth century. Malone, supra, at 1044
n.1 (citing 3 W. Holdsworth, A History of English Law 576
(3d ed. 1923)). Atone time, commentators thought the maxim
Originated in Roman jurisprudence, but this assumption has
since been abandoned. See Malone, supra, at 1051 (citing H.
Goudy, Two Ancient Brocards, in Essays in Legal History
18-22 (P. Vinogradoff ed. 1913)).
There are some explanations, though none particularly
compelling, for why causes of action were thought to expire
upon the death of plaintiff or defendant. As noted above, one
reason is the lack of anything to award a plaintiff once the state
had exacted its punishment. Moreover, when the plaintiff died,
his need for vengeance and satisfaction from the defendant also
seemed to expire. See W. Keeton, D. Dobbs, R. Keeton & D.
Owen, Prosser & Keeton on Torts § 126, at 942 (Sth ed.
1984). With a conceptual shift away from punishment and
toward compensation in the law, survival recovery followed.
See id. In a sense, the value of the inchoate claim "earned" by
the deceased during his or her lifetime could be passed on after
death like other assets.
At first, only a limited group of persons could recover
survival damages for injury to others. Masters recouped for
losses to servants; husbands could recover for injuries to wife
and child. Wives and servants, however, had no corresponding
rights:
[T]he inferior hath no kind of property in the
company, care or assistance of the superior, as the
28a
superior is held to have in those of the inferior; and
therefore the inferior can suffer no loss or injury.
3 W. Blackstone, Commentaries *143.
By the mid-nineteenth century, legislatures began to
eliminate these and other common law rules. Smedley, supra,
at 619. In 1934, a British statute was enacted to provide that
the right to maintain a suit did not expire with the death of the
injured person. See Law Reform (Miscellaneous Provisions)
Act, 24 & 25 Geo. 5, ch. 41 (1934). The majority of states
now permit some kind of survival action. See 2 S. Speiser,
Recovery for Wrongful Death § 14.8 (2d ed. 1975 & Supp.
1990). See generally Miller, Dead People in Torts: A Second
Installment, 22 Cath. U.L. Rev. 73 (1972). In those states
permitting survival recovery, all courts permit damages for
conscious pain and suffering in personal injury cases. F.
Harper, F. James & O. Gray, supra, §§ 25.10, 25.16; see also
Restatement (Second) of Torts §§ 904, 905 (1979).
This development is consistent with the current economic
rationales and conceptual underpinnings of modern American
tort law: first, full compensation for the persons harmed;
second, deterrence against future delicts by the wrongdoer; and
third, some recognition of each person’s inviolate right against
impairment of his or her freedom. See generally 1 A.L.I.
Reporter’s Study Enterprise Responsibility for Personal Injury
14-33 (1991); Tort Law and the Public Interest 18-39 (P.
Schuck ed. 1991); S. Perry, The Moral Foundations of Tort .
Law (1991) (collecting non-economic theories of tort law); O.
Holmes, The Common Law 94-102 (1881, 1943 ed.).
Courts generally rely on the economic policy underlying
the first two of these principles, but the third is a powerful
29a
hidden premise influencing both courts and juries. These
principles have led to the widespread acceptance of full
compensation for loss as one of tort law’s hallmarks. See infra
Section V(A). The $75,000 Warsaw Convention limit is a
Statutory departure that yields to these general principles when
an air carrier causes damage through willful misconduct.
[V. EVOLUTION OF CURRENT CONSENSUS
A. STATE LAW
Survival recovery for pain and suffering is an issue on
which there is a clear consensus in American State law. The
overwhelming majority of states have survival Statutes or
provide for survival revovery under wrongful death statutes.
See generally 2 S. Speiser, Supra, § 14.8; Restatement (Sec-
ond) of Torts §§ 925, 926 (1979).
Applying these survival statutes, scores of state law
decisions uphold conscious pain and suffering awards in air
crashes and other traumatic situations. See, e.g., In re Air
rash Disaster _at Sioux City, Iowa on July 19, 1989, 760
F.Supp. 1283, 1287 (N.D. Ill. 1991) (damages for pre-death
pain and suffering recoverable under California wrongful death
Statute); cf. 1 N.Y. Pattern Jury Instructions 2:171 (2d ed.
1974 & Supp. 1990) (Warsaw Convention); 2:280 (pain and
suffering). Many courts require affirmative proof that the
plaintiff was conscious and aware of the injury. See, e.g., In
re Air Crash Disaster Near Chicago, Illinois on May 25, 1979,
507 F. Supp. 21, 24 & n.1 (N.D. Ill. 1980) (declining to strike
or dismiss pain and suffering claims under Illinois law and
permitting discovery on issue of whether victim was conscious
even for a short time); Caldarera v. Eastern Airlines, 529 F.
30a
Supp. 634, 640 (W.D- La. 1982) (damages improper under
Louisiana law where there was no proof of decedent’s con-
scious suffering).
The cases denying such pain and suffering awards are the
exception. See, e.g., El-Meswari_v. Washington Gas Light
Co., 785 F.2d 483, 490-91 (4th Cir. 1986) (Virginia statute
does not allow pre-death pain and suffering damages where
roofing materials were thrown from roof onto five-year-old
child); O’Keeffe v. Boei Co., 335 F. Supp. 1104, 1115 n.34
(S.D.N.Y. 1971) (Washington state survival statute did not
allow conscious pain and suffering where decedents were killed
in plane crash).
The In re Lockerbie decision made clear that a cause of
action under the Warsaw convention preempts all state law
wrongful death claims. But decisions rendered under state law,
as well as a well-developed American consensus of providing
survival actions after death, need not be cast aside. Like the
federal statutes and decisions examined below, current state law
decisions are instructive in fashioning a uniform modern
federal common law rule for Warsaw Convention recoveries.
If possible, federal common law tort jurisprudence should
be consistent with that developed by the states. Cf. Colorado
v. ASARCO, Inc., 608 F. Supp. 1484, 1490 (D. Colo. 1985)
(turning first to state law in developing federal common law of
contribution under section 107 of Comprehensive Environmen-
tal Response, Compensation, and Liability Act). The federal .
courts need not ignore the wisdom acquired in modern times.
They need not reinvent a new wheel -- particularly where the
wheel may have been adequate only for a common-law era ox
and cart. On the issues now before the court, a consensus in
United States tort law is possible. Cf. In re "Acgent Orange"
3la
Prod. Liability Litigation, 580 F.Supp. 690, 693-703, 706
(E.D.N.Y. 1984) (national consensus law applied to determine
liability and appropriateness of punitive damages).
B. FEDERAL STATUTORY ANALOGUES
Although the In re Lockerbie court directed that federal
law must be applied to interpret the Warsaw Convention, it did
not point courts in any particular direction to find that law. The
Ninth Circuit has suggested that courts should look to federal
Statutory analogues, writing that
the questions of who are the persons entitled to
assert th(e Warsaw convention wrongful death]
cause of action and what are their respective rights
may be determined by reference to other federal
Statutes . . . .(W]e leave to future courts the task of
determining the most appropriate analog.
In re Mexico City Aircrash of October 31. 1979, 708 F.2d
400, 415 (9th Cir. 1983) (citation omitted).
In deciding which federal statutes to examine, the
Supreme Court has offered some guidance. In Moragne v.
States Marine Lines, 398 U.S. 375 (1970), the Court suggested
several possible statutes that might be helpful in determining
the proper beneficiaries in a general maritime (common law)
wrongful death action. Although the Court declined to choose
any one of the statutes in that case, it suggested as possibilities
the Federal Employers’ Liability Act, the Jones Act, the Outer
Continental Shelf Lands Act, the Longshore and Harbor
Workers’ Compensation Act, and the Death on the High Seas
Act. Moragne, 398 U.S. at 407-09. A number of these
2a
statutes, among others, are considered below. Under each of
these statutes, survival recovery is allowed and pain and
suffering damages are appropriate.
1. FEDERAL EMPLOYERS’ LIABILITY ACT
The Federal Employers’ Liability Act, 45 U.S.C. § 51 et
seq., (1986) ("FELA"), governs liability of common carmiers
to their employees for injuries arising in the course of employ-
ment. One section explicitly provides for a survival action for
the benefit of the employee’s beneficiaries:
Any right of action given by this chapter to a
person suffering injury shall survive to his or her
persona] representative.
Id. § 59.
Under the FELA, courts have awarded pain and suffering
damages for the period of time between injury and death. In
one case, the court held that the administrator of a railway
switchman’s estate could recover for the 3 1/2 hours of
conscious pain and suffering that he experienced before his
death. Wetherbee v. Elgin, Joliet & E. Ry. Co., 191 F.2d
302, 308 (7th Cir. 1951). Although the FELA applies by its
terms only to federal employees, the statute is useful as an
analogue since it specifically provides that a survival action
includes damages for "[a]ny right of action" the deceased .
would have been able to maintain if he or she had survived.
See 45 U.S.C. § 59 (1986) (emphasis added).
33a
2. FEDERAL TORT CLAIMS ACT
The Federal Tort Claims Act, 28 U.S.C. § 1346(b)
(1976); 28 U.S.C. § 2671 et seq. (1965) ["FTCA"), governs
tort claims against the United States government. As with the
FELA, courts have awarded post-injury pain and suffering
damages for claims filed under the FTCA. Although the
FTCA itself has no survival provision, state statutes which
permit pain and suffering damages are relied upon to grant
survival damages to FTCA plaintiffs.
A striking series of cases under the FTCA arose where
persons suffered Guillain-Barre Syndrome after being adminis-
tered the Swine Flu Vaccine. In Cardillo v. United States, 622
F. Supp. 1331 (D. Conn. 1984), the court approved the pain
and suffering award for the period of time beginning when the
plaintiff was attached to a respirator until it was discovered
disconnected ten days later. The court also found that beyond
that date until plaintiff’s death, she had sufficient cognition to
perceive pain and thus a further award was proper. Id. at
1347; see also Hewitt v. United States, 550 F. Supp. 589, 591
(D. Mass. 1982) (recovery appropriate under Massachusetts
law for conscious pain and suffering of decedent administered
swine flu vaccine); cf. Smiel v. United States, 147 F. Supp.
835, 835-36 (N.D.N.Y. 1957) (denying conscious pain and
suffering damages under FTCA for three-year-old child who
died within minutes of being run over by mail truck, because
there was no showing of negligence; implying that recovery
would have been permitted on such showing).
The FTCA has a broader sweep than the FELA, since it covers
all possible plaintiffs rather than employees alone. In addition,
since the claims are tort-based, the analogy to causes of action
under the Warsaw Convention is bolstered. As already noted,
34a
the Second Circuit in In re Air Disaster at Lockerbie, Scotland
on December 21, 1988, 928 F.2d 1267, 1279 (2d Cir. 1991),
determined that the federal common law claims under the
Warsaw Convention sound in tort.
3. _LONGSHORE AND HARBOR WORKERS’ COMPEN-
SATION ACT
The Longshore and Harbor Workers’ Compensation Act,
33 U.S.C. § 901 et seq. (1986) ("LHWCA"), addresses
compensation for employees injured on or near navigable
waters of the United States. Section 903 provides:
[C]ompensation shall be payable under this chapter
in respect of disability or death of an employee, but
only if the disability or death results from an injury
occurring upon the navigable waters of the United
States (including [adjoining structures])....
Id. § 903(a). The LHWCA excludes federal employees from
coverage. Id. § 903(b).
Under the LHWCA, courts have awarded pain and
suffering survival damages, even where the time period
between injury and death was brief. For example, in Hinson
v. SS Paros, 461 F. Supp. 219 (S.D. Tex. 1978), the court
approved a $5,000 award for the "fleetest seconds" between the
time a longshoreman fell overboard and then drowned. Id. at .
222. Another court sustained an even higher award for the
excruciating pain suffered by a sulphur company employee
when molten sulphur fell on him and killed him as he was
unloading a barge. Drachenberg v. Canal Barge Co., 621 F.2d
35a
760, 762 (Sth Cir. 1980) (district court’s award of $40,000 was
appropmiate; even higher award might have been proper).
4. JONES ACT
Where a seaman is injured on board a vessel, the Jones
Act provides a cause of action against ship owners for their
negligence. The statute provides:
Any seaman who shall suffer personal injury in the
course of his employment may, at his election,
maintain an action for damages at law... . ; and in
case of death of any seaman as a result of any such
personal injury the personal representative of such
seaman may maintain an action for damages at law
46 U.S.C. App. § 688(a) (Supp. 1991). Although the Jones
Act itself has no survival provision, it affords the same remed-
ies as the FELA. See id. (“all statutes of the United States
modifying or extending the common-law right or remedy in
cases of personal injury to railway employees shall apply");
Cox _v. Dravo Corp., 517 F.2d 620, 622 n.2 (3d Cir.) (en
banc), cert. denied, 423 U.S. 1020 (1975) ("[T]he judicial
principles developed under the FELA are also applicable to the
Jones Act.").
A number of cases decided under the Jones Act have
awarded pain and suffering damages for the interval between
injury and death, even where the time period was short. For
example, the Ninth Circuit in Cook v. Ross Island Sand &
Gravel Co., 626 F.2d 746, 752 (9th Cir. 1980), approved the
damage award of $35,000 for a deckhand’s 2 1/2 minutes of
36a
conscious pain and suffering before he drowned after falling off
a tugboat into the Columbia River. As in the case before the
court today, the pathologist estimated the period of conscious-
ness based on an autopsy. See id. at 748. The Ninth Circuit
declined to adopt a "stop watch approach" to determine
whether the decedent had been conscious for a legally cogniza-
ble interval of time; rather, the court held that the inquiry
should depend on the circumstances of each case. Id. at 751.
Similarly, the court in In re Marina Mercante Nicara-
guense, S.A., 248 F. Supp. 15, 28 (S.D.N.Y. 1965) (Wein-
feld, J.), modified, 364 F.2d 118 (2d Cir. 1966), cert. denied,
385 U.S. 1005 (1967), let stand a damage award of $1,500 for
the decedents’ two to three minutes of conscious pain and
suffering when their tugboat went down. The court wrote that
"while their suffering was short-lived, it was intensive,
excruciating and agonizing." Id. As one court wrote, "[t]he
fact that death came in a matter of minutes, or even less, does
not necessarily preclude an award for conscious pain and
suffering." Noel v. Linea Aeropostal Venezoiana, 260 F.
Supp. 1002, 1006 (S.D.N.Y. 1966) (plane en route to Vene-
zuela exploded and crashed off the New Jersey coast).
5. CIVIL RIGHTS ACT
The Civil Rights Act, 42 U.S.C. § 1983 (1981), provides
a cause of action where civil nghts are violated by those who
act under color of state authority. Courts have awarded
conscious pain and suffering survival damages under this
Statute. For example, in Berry v. City of Muskogee, 900 F.2d
1489 (10th Cir. 1990), the Tenth Circuit held that the wife of
an inmate who was killed by other inmates could recover for
pre-death pain and suffering in her civil nmghts action. The
37a
court found that the damages recoverable under the Oklahoma
survival statute were too restrictive, and thus a federal survival
remedy was appropriate to vindicate the purpose of section
1983. Id. at 1506-07.
In another case, a mother was permitted to recover for
the pain and suffering of her minor son who was killed by
police officers. Guyton v. Philling, 532 F. Supp. 1154, 1166
(N.D. Cal. 1981) ("To deny recovery for pain and suffering
would strike at the very heart of a § 1983 action."); see also
Sharpe v. City of Lewisburg, 677 F. Supp. i362, 1365 (M.D.
Tenn. 1988) ($25,000 allowed for pain and suffering of man
who lived no more than a few minutes after being shot by
police officers). The district court in Guyton held that
conflicting provisions of the California wrongful death statutes
were preempted, just as In re Lockerbie determined that state
Statutes are preempted by the Warsaw Convention wrongful
death action. See 532 F. Supp. at 1166; see also McFadden v
Sanchez, 710 F.2d 907, 911 (2d Cir. 1983) (application of
state survival statute not allowed if it would bar or limit section
1983 remedies in a death action).
In addition to a section 1983 action, another section of the
Civil Rights Act explicitly provides for a survival action. The
widow or next of kin of one who dies from a conspiracy has a
Cause of action against anyone who had both knowledge of the
prohibited conspiracy and power to prevent the harm. See 42
U.S.C. § 1986 (1981).
Finally, there is a separate federal constitutional civil
rights action that would support both a death and a survival
action. See Bivens v. Six Unknown Named Agents, 403 U.S.
388, 397 (1971) (petitioner had cause of action for damages for
any injuries suffered as a result of fourth amendment viola-
38a
tion); id. at 396 ("‘itis . . . well-settled that where legal rights
have been invaded, and a federal statute provides for a general
right to sue for such invasion, federal courts may use any
available remedy to make good the wrong done"’) (citing Bell
v. Hood, 327 U.S. 678, 684 (1946)).
The Supreme Court has held that survival recovery is
allowable in a Bivens action, and the survival claim is gov-
erned by federal common law. See Carlson _v. Rereen, 446
U.S. 14, 24-25 (1980). The Court nonetheless declined to
decide the content of the applicable federal common law. See
id.; see also Weeks v. Benton, 649 F. Supp. 1297, 1309 (S.D.
Ala. 1986) (applying Carlson by analogy to hold that Alabama
wrongful death statute may only be applied to the extent that it
permits survival of section 1983 action).
6. DEATH ON THE HIGH SEAS ACT AND GENERAL
MARITIME LAW
Defendant TWA urges that the Death on the High Seas
Act, 46 U.S.C. § 761 et. seg. (1975) ["DOHSA"] provides the
most apt analogy under the Warsaw Convention. The DOHSA
governs liability for any tortiously caused death occurring more
than one marine league from shore. In Moragne v. States
Marine Lines, 398 U.S. 375 (1970), the Supreme Court noted
that among the possibly analogous federal statutes, the Death
on the High Seas Act is more general, applying
not just to a class of workers but to any "person,"
. . . bas[ing] liability on conduct violative of gener-
al maritime law... .
Id. at 408.
i
39a
By its own terms, the DOHSA does not provide for
survival recovery. See id. § 761 ("the personal representative
of the decedent may maintain a suit for damages. . . . for the
exclusive benefit of the decedent’s wife, husband, parent,
child, or dependent relative"); Miles v. Apex Marin Oorp.,
111 S. Ct. 317, 327 (1990) ("At the federal level, DOHSA
contains no survival provision."). Nonetheless, courts applying
the statute have used both state Survival statutes and general
maritime law to permit survival recovery.
In some DOHSA cases, plaintiffs are permitted to recover
for the period of conscious pain and suffering between injury
and death through state survival statutes. See, e.g., Snyder v.
Whittaker, 839 F.2d 1085, 1092 (Sth Cir. 1988) (plaintiff
whose husband drowned could recover pain and suffering
damages under Texas survival statute in action under DOHSA):
Camillas_v. Joseph H. Carter. Inc., 280 F. Supp. 48, 51
(S.D.N.Y. 1968) ("The silence of the Death on the High Seas
Act on this subject does not cut off a claim for ante mortem
pain and suffering."). The Supreme Court has declined to
approve or disapprove the practice of supplementing the
DOHSA in this way. Offshore Logistics, Inc. v. Tallentir .
477 U.S. 207, 215 n.1 (1986) (declining to address whether
DOHSA may be "supplemented" by pain and suffering
recovery under some applicable state Statute).
After the In re Lockerbie decision, the courts of this
circuit may not be able to use state survival Statutes to supple-
ment a Warsaw Convention cause of action in the way the
courts have done under the DOHSA. Other courts, however,
have supplemented the DOHSA with a survival right based on
general maritime law. See, e.g. Favaloro v. SIS Golden Gate,
687 F. Supp. 475, 480 (N.D. Cal. 1987) (although DOHSA
preempts wrongful death actions under state and general
a
40a
maritime law, it does not preempt general maritime survival
action for pain and suffering). A common law survival right is
engrafted onto the DOHSA in the same way that it would
become part of the federal common law under the Warsaw
convention.
Under the general maritime nght of survival, a pre-death
conscious pain and suffering award is appropriate. See, e.g.,
Law_v. Sea Drilling Corp., 510 F.2d 242, 249-50 (Sth Cir.
1975) (general maritime law permits recovery for conscious
pain and suffering of employee killed when ramp on an oil ng
collapsed in the Gulf of Mexico); Greene v. Vantage Steamship
Corp., 466 F.2d 159, 166 & n.9 (4th Cir.1972) (pain and
suffering appropriate in wrongful death action under general
maritime law, since "{c]learly, there is no federal policy
against [it]"). The Supreme Court recently declined to decide
whether there is a general maritime night of survival. Miles v.
Apex Marine Corp., 111 S. Ct. 317, 327 (1990). The Court
wrote:
Miles argues that we should follow the Courts of
Appeals and recognize a general maritime survival
right. Apex urges us to reaffirm the traditional
maritime rule and overrule these decisions. We
decline to address the issue, because its resolution
is unnecessary to our decision on the narrow ques-
tion presented.
Even if the Supreme court found that there is no maritime
survival right, such a ruling would not necessarily bar survival
rights under the Warsaw Convention because, as already noted,
the general tort consensus in non-admiralty cases is to recog-
nize a survival cause of action.
4la
Executive Jet Aviation v. City of Cleveland, 409 U.S.
249, 264-65 (1972), cited by the parties, is inapposite. In
Executive Jet, the Supreme Court examined the tests for
admiralty tort jurisdiction, holding that an aviation tort must
bear a significant relationship to traditional maritime activity
and not simply occur over navigable waters. Id. at 269. An
aircraft had hit a flock of sea gulls shortly after takeoff from
Cleveland en route to Maine and New York and then crashed
into Lake Erie. Since the intended course was almost entirely
over land and there was no significant relationship to traditional
maritime activity, there could be no admiralty jurisdiction in
the absence of an applicable federal statute. See id. at 273-75.
Executive Jet is a decision delineating jurisdictional, not
Substantive, law. Federal jurisdiction in the instant case is
based on the Warsaw Convention and not on the DOHSA or on
admiralty jurisdiction, and thus Executive Jet is irrelevant to
the issue of whether a cause of action for pain and suffering
survives death.
It is important to note that the process of fashioning
federal common law under the Warsaw Convention does not
actually involve applying the DOHSA. Thus, the DOHSA
cannot be used to inhibit federal courts from recognizing a
survival action under federal Warsaw Convention treaty
common law or general maritime law. Some kind of recovery
for conscious pain and suffering is permissible under each of
the federal statutes examined which provides for wrongful
death claims, and in the majority of states. Given this over-
whelming evidence, it is unnecessary to choose from among
the federal statutes for one analogue. Properly construed, all
lead to allowance for pain and suffering after injury but before
death.
42a
V. POLICIES SERVED BY SURVIVAL RECOVERY FOR
MENTAL AND PHYSICAL INJURY
A. FULL COMPENSATION
There is a rich history in American law of compensating
those injured for the full harm suffered, whether physical
injury alone or in combination with mental anguish. See
Restatement (Second) of Torts § 901(a) (1979). The court in
In_re_ Lockerbie addressed the question of whether punitive
damages were sufficiently compensatory in nature to be proper
under the Warsaw Convention. After analyzing the history and
purpose of the Convention, the Second Circuit concluded that
any damages awarded under the Convention must be compensa-
tory rather than punitive, and thus punitive damages are not
allowed.
Permitting Mr. Ospina’s damage award for conscious
pain and suffering is consistent with the holding of In re
Lockerbie. Pain and suffering damages are not punitive but
compensatory. See Restatement (Second) of Torts § 912
comment b (1979). That is, the plaintiff who receives damages
for pain and suffering gains redress for the actual harm caused.
Mr. Ospina’s damage award is proper under Second Circuit
precedent. As the In re Lockerbie court wrote:
[W]e agree that the way in which the Convention
uses the term [dommage survenu] indicates that
Article 17 refers to actual harm caused by an
accident rather than generalized legal damages....
The context within which the Convention was
written adds further support to the conclusion that
43a
the damages contemplated by Article 17 are purely
compensatory.
In re Lockerbie, 928 F.2d at 128:L.
Other courts have also concluded that "demmage surven-
u" refers to actual harm, which includes pain and suffering.
See In re Korean Air Lines Disaster of September 1, 1983, 932
F.2d 1475, 1485 (D.C. Cir. 1991) ("[t]he words ‘damage
sustained’ do not refer to legal damages; they refer to actual
harm experienced"); Floyd v. Eastern Airlines, 872 F.2d 1462,
1487 n.42 (11th Cir. 1989) ("While mental injuries are
intangible in nature. allowing recovery for them is intended to
be compensatory, and is in no way meant to penalize the
wrongdoer.") (citation omitted), rev’d on other grounds, 111
S. Ct. 1489 (1991); In re Air Crash Disaster _at_Gander,
Newfoundland, on December 12. 1985, 684 F. Supp. 927, 931
(W.D. Ky- 1987) ("Punitive damages are not ‘damages
sustained’ by a particular plaintiff.").
B. HARMONIZING EASTERN AIRLINES v. FLOYD
Although "dommage survenu" encompasses many forms
of harm, it cannot include purely mental injury unconnected to
physical harm, following the Supreme Court’s decision in
Eastern Airlines v. Floyd, 111 S. Ct. 1489 (1991). Plaintiffs
in Floyd were passengers on a plane which lost power in three
engines and began a rapid descent toward the Atlantic Ocean.
After futile attempts to restart the engines, the crew notified the
passengers that the plane would be ditched. Moments later, the
crew restored power and the plane landed at Miami Internation-
al Airport without further incident. Plaintiffs sued the airline
44a
for the extreme mental anguish they suffered in their brush
with disaster.
After surveying the legal meaning of the phrase "dom-
mage survenu" in Article 17, the structure and purposes of the
Convention, the negotiating history surrounding its adoption,
and the post-signing conduct of the signatories, the Court
concluded that psychic injury alone will not sustain a damage
award:
[A]n air carrier cannot be held liable under Article
17 when an accident has not caused a passenger to
suffer death, physical injury, or physical manifesta-
tion of the injury.
Eastern Airlines v. Floyd, 111 S. Ct. at 1502.
Since the plaintiffs in Eastern Airlines v. Floyd had not
suffered or alleged any physical injury, the Court declined to
decide whether "dommage survenu" covers psychic injury in
combination with physical damage. The Court wrote:
[W]e express no view as to whether passengers can
recover for mental injuries that are accompanied by
physical injuries.
Id. Nevertheless, the implication of Floyd is that psychic
damage accompanying physical injury is recoverable.
The Supreme Court’s opinion in Floyd contrasted -purely
mental injury with mental injury that is accompanied by phys-
ical harm. For example, in the section examining French case
law, the Court wrote:
4Sa
[W]e have been directed to no French Case prior to
1929 that allowed recovery . . . for the type of
mental injury claimed here -- injury caused by
fright or shock -- absent an incident in which
someone sustained physical injury.
Eastern Airlines v. Floyd, 111 S. Ct. 1489, 1496 (1991)
(emphasis in original). All the evidence suggested, the
Supreme Court concluded, that the French legal meaning of the
phrase "dommage survenu" could not apply to mental injury
alone, but that it would apply to mental injury connected with
physical harm. Both the documents the Court examined --
which need not be reconsidered here -- and the rhetorical force
of the opinion, as well as the plain language of the treaty, point
to recovery for those who suffer both physical and mental
injury in combination. See generally Halberstam, The Use of
Legislative History in Treaty Interpretation Dual Treaty
Approach, 12 Cardozo L. Rev. 1645 (1991).
American cases prior to 1929 -- the year of the Warsaw
Convention -- allowed psychic damage and pain and suffering
when it was accompanied by physical trauma. See, ¢.., St.
Louis, Iron Mountain & S. Ry. Co. v. Craft, 237 U.S. 648,
654 (1915) (appropriate for jury to award conscious pain and
suffering damages where the decedent was "’groaning every
once in a while’" during the half-hour he was pinned under a
rail car before he died); Luckenbach S.S. Co. v. Campbell, 8
F.2d 223, 224 (9th Cir. 1925) (where a seaman on his way to
clean the decks fell through a hatch and later died, $5,000
award was not too high for survival damages including
conscious pain and suffering). But see Chicago, Milwaukee,
& St. Paul Ry. Co. v. Clement, 226 F. 426, 426 (9th Cir.
1915) (where horse-drawn milk wagon full of coke and coal
was hit by train at crossing and plaintiff driver’s mangled body
46a
was later found under the train, there was insufficient evidence
to award pain and suffering since death was probably instanta-
neous).
1. FLOYD DISTINGUISHED ON THE FACTS
The factual setting in Eastern Airlines v. Floyd differs
markedly from the case before the court today. That dissimi-
larity also supports affirming the jury award of damages to Mr.
Ospina to compensate for conscious pain and suffering after
wounding but before death. The experience of the Floyd
plaintiffs, while no doubt excruciating, is of a different order
from that experienced by the plaintiff here. The passengers on
the Eastern Airlines flight were justifiably ternfied as the plane
lost altitude over the Atlantic but no one was physically harmed
or lost his life. The passengers’ mental suffering is different
from the agony Mr. Ospina suffered while in pain from his
wounds, falling to certain death after the bomb tore through his
body and he was ejected from the aircraft.
Even if one of the plaintiffs in Eastern Airlines v. Floyd
had suffered a heart attack or an injury to the eardrums from
the sudden loss of altitude, the facts would not have supported
recovery as forcefully as they do for Ospina. For the hypothet-
ical Floyd plaintiff, the airline’s willful misconduct would have
caused first, mental anguish and then, physical harm: the
"damage sustained" was fright, with a physical injury occurring
thereafter partly as a result of the fright.
For Mr. Ospina, however, TWA’s willful misconduct led
first to his physical injury, which itself caused the pain and
suffering, and then he died. The pain and suffering was a
direct result of the physical injury. The injury, pain and
47a
suffering, and death of Ospina were "damage sustained" under
the treaty. Such a sensible interpretation of the language of
Article 17 is not contrary to any ruling case law.
Plain meaning suggests that this must be "damage
Sustained in the event of the death or wounding of a passenger”
under Article 17. Accord Burnett v. Trans World Airlines,
368 F. Supp. 1152, 11513 (D.N.M. 1973) (plaintiffs injured
when their TWA jet was hijacked to Amman, Jordan could
recover for "any . . . emotional anxiety that they can demon-
strate resulted from a bodily injury suffered as a consequence
of the hijacking"); see also Halberstam, The Use of Legislative
History in Treaty Interpretation: The Dual Treaty Approach,
12 Cardozo L. Rev. 1645 (1991).
The Court’s decision in Floyd is consistent with American
tort law, since courts resist awarding damages for purely
psychic injuries. See Restatement (Second) of Torts § 436A;
J. Stein, Damages and Recovery § 8, at 11 (1972 & Supp.
1990). Courts have been reluctant to award damages for
purely psychic injury for a variety of reasons. To begin with,
compensating a plaintiff for mental injury in effect requires
recognizing a right to emotional tranquility, which is as yet an
ill-defined notion. In addition, many courts deny liability
because psychic injuries are not considered real or substantial,
or because of difficulties of proof. Proximate cause is a
difficult aspect of proof where there is only psychic harm. See
F. Harper, F. James & O. Gray, supra, § 18.4. Finally, with
the prospect of awards for psychic injury alone, courts fear a
flood of false claims.
There is in effect a three-level hierarchy for cases raising
the issue of psychic harm. At the bottom, most troubling to
courts, is purely psychic harm. In the middle, recognized by
a i
48a
only some statutes and courts, is mental anguish which
immediately precedes physical injury or death. See generally
Smith, Relations of Emotions to Injury and Disease: Legal
Liability for Psychic Stimuli, 30 Va. L. Rev. 193, 207 (1944).
Finally, most provable and almost uniformly compensated, is
psychic harm which directly results from or occurs with
physical injury. See F. Harper, F. James & O. Gray, supra,
§ 18.4 (law freely allows recovery for psychic injuries resulting
from physical harm, denominated "parasitic" psychic injury).
Since Mr. Ospina suffered physical injury which then caused
him psychic harm, the award of damages to compensate for
that harm is appropriate.
2. "“TRIPWIRE" ARGUMENT
An objection to permitting recovery for pain and suffering
subsequent to physical injury is that it would provide a danger-
ous precedent. It is urged that any physical injury, however
slight, would then act as a “tripwire” to permit recovery for
plaintiffs with predominantly mental injuries. A slight scratch
or bruise on one plaintiff would mean a bonanza for him or
her, whereas a plaintiff with identical mental trauma but no
physical damages would not be compensated. Whether or not
a de minimis rule should be devised, it cannot apply here. Mr.
Ospina was almost blown in two by the bomb blast. The
evidence is uncontested that he suffered excruciating physical
and mental agony before dying.
Equally distinguishable are those cases where the passen-
ger is first terrorized as the plane plunges towards the ground
and then suffers physical injury or death. Cf. Shu-Tao Lin v.
McDonnell Douglas Corp., 742 F.2d 45, 53 (2d Cir. 1984)
(seeing no “intrinsic or logical barrier" to lower court’s award
49a
of damages for pre-impact psychic injury under New York
law); Haley v. Pan Am. World Airways, 746 F.2d 3] 1, 317-18
(Sth Cir. 1984) (where plaintiff “apprehended his death at least
from the time the plane’s wing hit the tree," award of damages
of $15,000 for four to six seconds of fear appropriate under
Louisiana law). An-argument might possibly be fashioned to
exclude such prior psychic damages, but it would have no
bearing where, as here, the wounding occurred first and was
then followed by pain and terror.
Nor need it now be determined what the effect would be
of a death simultaneous with wounding due to a crash or
explosion. Cf. Moorhead v. Mitsubishi Aircraft Int’l, 828
F.2d 278, 288 n.43 (Sth Cir. 1987) (denial of damages for pre-
crash pain and suffering proper where pilot and passengers
killed instantly and pre-crash suffering not proved); Galloway
vy. Korzekwa, 346 F. Supp. 1086, 1093-94 (N.D. Miss. 1972)
(no damages under Mississippi law where death in automobile
accident was instantaneous). But see United States v. Furumi-
ZO, 381 F.2d 965, 970 (9th Cir. 1967) (trial court’s $15,000
pain and suffering award was not excessive even where death
in small plane crash was almost instantaneous; question was
one for trial judge).
The expert witness testified that Mr. Ospina was definite-
ly alive and suffering after the explosion. The expert found
that Mr. Ospina "would have experienced some type of con-
scious suffering in a period of a range of five to ten seconds
and then death would have ensued." The jury awarded
damages for the approximate time of consciousness.
es ee re -
50a
Foe PURPOSES OF THE CONVENTION
This case represents the beginning of the development of
federal common law pursuant to In_re Lockerbie. In that
development, it is desirable -- to the extent that policy and
treaty language permit -- to conform the federal common law
to modern state common law. Consistency between federa! and
State common law is highly desirable. The two can develop
side by side as changing conditions require.
As we have seen, survival damages are commonly
awarded under a variety of federal statutes and under state law.
If courts were not permitted to award pain and suffering
survival damages under the Warsaw Convention, the Conven-
tion would be the exception to the American rule. The Second
Circuit has indicated that uniformity is one of the purposes of
the Warsaw Convention itself. The court in In re Lockerbie
stressed that state law causes of action must be preempted in
order to avoid inconsistent outcomes. See In re Air Disaster
at Lockerbie, Scotland on December 21, 1988, 928 F.2d 1267,
1274 (2d Cir. 1991). Uniformity within and among the states
and federal government is desirable and is consistent with the
national uniformity required by In re Lockerbie. Here, there
is no inconsistency.
Uniformity among the nations signatory to the treaty has
not been shown to be necessary or even possible. In fact, the
reference in Article 25 of the Warsaw Convention to the "law
of the court to which the case is submitted" suggests that
national differences are expected. {n any event, there would be
approximate uniformity at least among common law nations,
where the result in the instant case would be the expected
norm. See, e.g., F. Harper, F. James & O. Gray, supra, §
24.2; Restatement (Second) of Torts § 925 comment k (1979).
Sla
The result in this case is also apparently not inconsistent with
civil law. See generally Martindale Hubbell Law Digest,
Canadian & International Law Digest passim (1991); B.
Markesinis, A Comparativ Introduction to th rm w of
Torts 682, 685 (2d ed. 1990).
Cie Air France v, Teichner, 39 Revue Frangaise de Droit
Adrien 232, 23 Eur. Tr. L. 87 (Israel 1984) (English transla-
tion on file in docket of instant case), strongly suggests that
other common law nations would support recovery for psychic
damages following severe physical injuries. In that case an Air
France flight en route from Ben-Gurion Airport in Israel to
Paris, France was hijacked with its Passengers and taken to
Entebbe Airport in Uganda. Before their rescue by the Israeli
Air Force, the passengers were threatened and subjected to
great stress but were physically unharmed. The Passengers
sued Air France.
The Israeli Supreme Court construed "dommage survenu"
(damage sustained) and "lesion corporelle" (bodily injury) to
include psychic damage and mental stress unaccompanied by
physical harm, in the circumstances of the hijacking and
Subsequent events in Uganda. The Israeli high court relied
upon French general tort law principles that all the elements of
damage require full compensation. It also pointed out that
while English and American courts were loath to allow
damages for psychological prejudice at the time of enactment
of the Warsaw Convention, there had been considerable
softening of that view subsequent to adoption of the treaty.
The court concluded that under Israeli as well as general civil
and common law analyses, purely psychic injuries warranted
compensation under the Warsaw Convention. For purposes of
tort law, Israel may be considered a common law country since
its law is still largely influenced by that of Great Britain.
ns
52a
Subsequently, in Eastern Airlines v. Floyd, 111 S. Ct.
1489 (1991), the United States Supreme Court rejected the
Israeli view for this country and denied damages for purely
psychic injuries. It reviewed but did not adopt Teichner. See
Floyd, 111 S. Ct. at 1498, 1501. The discussion in Teichner
is, however, still relevant to the issue now before this court --
psychic damages associated with severe physical injury.
Teichner strongly suggests that the rule adopted in the instant
case would a fortiori be the one embraced by both common law
and civil courts. Thus, uniformity among the nations bound by
the Warsaw Convention would be enhanced were the United
States federal common law to incorporate the rule that psychic
damage associated with physical injury is compensable under
the Warsaw Convention.
Uniformity is only one of the purposes of the Warsaw
Convention. In addition, the treaty was intended to "limit[] the
liability of air carriers in order to foster the growth of the
fledgling commercial aviation industry." Eastern Airlines v.
Floyd, 111 S. Ct. 1489, 1499 (1991) (citations omitted). At
first glance, today’s decision may seem inconsistent with that
goal. The airline industry is not still "fledgling," however, as
it was in the 1920s and 1930s when the Warsaw Convention
was negotiated and signed. Air travel is a strong mass industry
like so many others in the late twentieth century, no weaker
than the bus, truck, or maritime industries which are all subject
to survival actions.
Allowing survival recovery does not expand liability for
international air disasters: it simply clarifies the character of
damages that are already recoverable under the Convention.
Thus survival recovery is not inconsistent with the purposes of
the Convention. If there is any msk of slightly enhanced
liability, it is overborne by the changing nature and circum-
53a
stances of modern international air travel. See In re Aircrash
in Bali, Indonesia on Apmil 22, 1974, 684 F.2d 1301, 1310 (9th
Cir. 1982) (acknowledging plaintiffs’ arguments that the airline
industry is no longer in its infancy and thus policies must
shift). But see id. at 1309 (court interpreting a treaty like the
Warsaw convention must "studiously avoid imposing its own
view of foreign policy objectives and must accept [those] of the
executive and legislative branches").
Finally, since Article 25 of the Warsaw Convention
applies and the liability cap is lifted, plaintiff or a representa-
tive may recover for all the damages suffered. "(T]he Conven-
tion deliberately allows common law countries to subject air
carriers to unlimited liability in cases of willful misconduct."
In re Lockerbie, 928 F.2d at 1271 (citing G. Miller, Liability
in International Air Transport 80 ( 1977)). That liability should
properly include compensation for the pain and Suffering a
plaintiff actually experiences.
Allowing | survival damages for pain and suffering
comports with the main policy goals of general tort law -- full
deterrence and compensation -- without interfering with the
goals of the Warsaw Convention itself. These goals are
compatible -- in fact, almost identical. Both are designed to
provide full compensation for harm suffered and deterrence
when the statutory limit of $75,000 does not apply.
The moral component of tort law is also vindicated by
allowing full survival recovery. The jury award represents the
sublimation of our own horror and our substitution, through
imagination, for Mr. Ospina in his final moments. It is as if
we ourselves are falling to our deaths. This constitutes our
recognition of the importance of human life and dignity up to
the moment of death. The compensation owed the dying Mr.
S4a
Ospina is one of his assets, which may be collected by his
widow for his estate.
VI. CONCLUSION
The jury’s award of damages for conscious pain and
suffering damages for the period between Mr. Ospina’s
physical wounding and death is appropriate under the Warsaw
Convention. The language of the Convention, federal common
law as embodied in federal statutes, and state decisional and
statutory authority support such awards. Conscious pain and
suffering damages are neither speculative nor punitive, but
rather compensate the survivor for the actual harm the decedent
experienced.
All other awards and findings of the jury are fully
supported by the evidence. The jury’s verdict is confirmed.
Defendant's motion to set aside or reduce the verdicts or for a
new trial is denied.
This judgment closes the last chapter in MDL 727. All
the cases arising from the Cairo-Rome-Athens terrorist attack
on the TWA airliner have now been tried or settled. The clerk
will notify the Judicial Panel on Multidistrict Litigation.
So ordered.
Dated: November 21, 1991
Brooklyn, New York
Jack B. Weinstein
United States District Judge
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