Appendix — Lufthansa German Airlines v. Krys

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Appendix A

Penina FISHMAN, an infant by her mother and natural

guardian, Michelle Fishman; Michelle Fishman,

individually, Plaintiffs-Appellants,

v.

DELTA AIR LINES, INC., Defendant-Appellee.

Nos. 1818, 2038, Dockets 96-9345, 96-9457.

United States Court of Appeals, Second Circuit.

Argued June 3, 1997.

Decided Jan. 5, 1998.

Appeal from a final judgment of the United States District

Court for the Southern District of New York (Cedarbaum, J.),

dismissing the complaint. The district court held that plain-

tiffs’ alleged injuries were caused by an “accident” within the

meaning of the Warsaw Convention, and that the time limita-

tion for bringing suit under the Convention was not subject to

tolling for infancy under New York law. Affirmed.

Elliot B. Pasik, Mineola, NY (Carole A. Burns & Associates,

Mineola, NY, on the brief), for Plaintiffs-Appellants.

George P. McKeegan, New York City (Thomas A. McShane,

Elizabeth B. Kane, McKeegan, McShane & Drago, P.C., New

York City, on the brief), for Defendant- Appellee.

Before: MESKILL, JACOBS, and LEVAL, Circuit Judges.

JACOBS, Circuit Judge:

*1 Infant plaintiff Penina Fishman, while travelling as a pas-

senger aboard an international flight, was scalded when a

stewardess applied an over-hot compress to alleviate the

child’s earache. The child and her mother sued Delta Air

Lines, Inc. (“Delta”) under the Warsaw Convention, as well

as for negligence and intentional torts in applying the com-

press, failing to advise the child’s mother of the injury while

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the plane was aloft, and refusing to provide medical assistance

when the plane landed. On this appeal, we consider whether

all the child’s claims are preempted by the Warsaw Conven-

tion and, if so, whether the two-year period of limitation un-

der the Warsaw Convention is tolled (under New York iaw)

during the child’s minority. There are some other and subsidi-

ary questions, including whether the mother’s claims for

emotional harm are similarly preempted.

The complaint was filed in the United States District Court

for the Southern District of New York two years and three

months after the flight. Judge Cedarbaum granted Delta’s

motion to dismiss on the ground that plaintiffs’ suit was un-

timely.

We affirm.

BACKGROUND

We summarize the facts that bear upon the issues addressed

on appeal, and we assume that the material facts alleged in the

complaint are true. See Atlantic Mut. Ins. Co. v. Balfour Ma-

claine Int’! Ltd., 968 F.2d 196, 198 (2d Cir.1992) (citing

Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40

L.Ed.2d 90 (1974)).

On November 9, 1993, plaintiff Michelle Fishman and her

two children were aboard a Delta flight from Tel Aviv to New

York with a stopover at Orly Airport in Paris. Mrs. Fishman

sat between her children with Penina, two years old, in the

aisle seat on her right. During the descent at Paris, Penina be-

gan crying and touching her ear. The child, who had a cold,

was evidently suffering from the change of air pressure. The

stewardess suggested that a cup containing a warm cloth be

placed over the ear. When this poultice was applied to Pen-

ina’s right ear, scalding water in the cup dripped on the

child’s neck and shoulder, causing burns. Mrs. Fishman asked

the crew to administer first aid before disembarkation, but the

crew refused to do so. After a further confrontation at the

gate, the child was rushed to Orly’s first aid station and

treated with topical ointment and a bandage.

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The plaintiff mother and child arrived in New York on No-

vember 9, 1993. The complaint against Delta was filed on

February 22, 1996. Michelle Fishman alleged claims on the

infant’s behalf under Article 17 of the Warsaw Convention, as

well as claims under New York law for negligence by the

stewardess in inflicting the burn, and for the negligent or in-

tentional denial of medical treatment both when the steward-

ess initially walked away, and later, aboard the plane after

landing. Mrs. Fishman also filed claims on her own behalf

under New York law for negligent and intentional infliction

of emotional distress, and denial of Penina’s services. Plain-

tiffs further assert (for the first time on appeal) an implied

cause of action based on Delta’s alleged failure to comply

with 14 C.F.R. § 121.309(d), which requires an airline to

maintain and use first aid kits for the protection of airline pas-

sengers.

*2 On September 12, 1996, Judge Cedarbaum granted

Delta’s motion to dismiss the complaint pursuant to

Fed.R.Civ.P. 12(b)(1) and 12(b)(5), on the ground of untime-

liness. See Fishman v. Delta Air Lines, Inc., 938 F Supp. 228

(S.D.N.Y.1996). The district court (i) considered the claims of

both mother and child as falling within the scope of the War-

saw Convention; (ii) concluded that the two-year period of

limitation in Article 29(1) of the Convention cannot be tolled

by reason of infancy; and (iii) dismissed on the ground that

the complaint was filed after the two-year period had expired.

Id. at 230-31.

The chief questions presented on appeal are whether the

torts alleged may be construed as arising from an “accident”

under the Warsaw Convention and, if so, whether the period

of limitation may be tolled during infancy.

DISCUSSION

A. Preemption under Article 17 of the Warsaw

Convention: The “Accident” Requirement.

We consider first whether plaintiffs’ state law claims are

preempted by the Warsaw Convention. See Pflug v. Egyptair

ee

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Corp., 961 F.2d 26, 29 (2d Cir.1992). All state law claims that

fall within the scope of the Convention are preempted. See In

re Air Disaster at Lockerbie, Scotland, 928 F.2d 1267, 1273

(2d Cir.1991).

Article 17 of the Convention provides:

The carrier shall be liable for damage sustained in

the event of the death or wounding of a passenger or

any other bodily injury suffered by a passenger, if

the accident which caused the damage so sustained

took place on board the aircraft or in the course of

any of the operations of embarking or disembark-

ing.

49 U.S.C. § 40105 note (emphasis added). A claim falls

within the scope of this provision if the “passenger’s injury is

caused by an unexpected or unusual event or happening that is

external to the passenger.” Air France v. Saks, 470 U.S. 392,

405, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985). It is enough if in

the chain of causation there is “some link “ that was an un-

usual or unexpected event external to the passenger. Id. at

406.

The district court identified the scalding as the “accident”

under the Warsaw Convention. On appeal, the plaintiffs cast

their claims chiefly in terms of what happened afterward--the

tortious refusal of medical care--and argue that such claims do

not arise out of the normal operation of aircraft, and in any

event are not accidental in nature. Plaintiffs rely on a line of

cases in which the tortious failure of airlines to give medical

aid to passengers suffering health emergencies was held to

fall outside the Warsaw Convention. See, e.g., Abramson v.

Japan Airlines Co., 739 F.2d 130, 133 (3d Cir.1984)

(preexisting hiatal hernia); Tandon v. United Air Lines, 926

F.Supp. 366, 369-70 (S.D.N. Y.1996) (heart attack); Walker v.

Eastern Air Lines, Inc., 775 F.Supp. 111, 114 (S.D.N.Y.1991)

(asthma attack); Fischer v. Northwest Airlines, Inc., 623

F.Supp. 1064, 1065 (N.D.II1.1985) (heart attack).

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*3 Judge Cedarbaum distinguished these cases on the valid

ground that all the claims asserted on behalf of Penina and her

mother arose from the scalding by a flight attendant--an un-

expected, unusual event that was external to both Fishmans.

Her reasoning, which we approve, was as follows:

The underpinning of the claims of both mother and

child is the scalding of Penina by a flight attendant,

an unexpected event that was external to both Fish-

mans. The precipitating cause, the “accident,” can-

not be artificially separated from its results as

Fishman attempts to do in order to avoid the War-

saw Convention. Because Penina’s injuries and Mi-

chelle’s were caused by an “accident” within the

meaning of the Warsaw Convention, the Conven-

tion provides the exclusive remedy and the state law

claims are preempted.

Fishman, 938 F.Supp. at 230 (emphasis added; citation omit-

ted).

Plaintiffs seize on and dispute the court’s observation that

“Penina had no pre-existing condition,” and point to record

facts that Penina suffered serial colds and ear infections, and

had narrow eustachian tubes, all of which predisposed her to

earache caused by the pressure change of the descent at Orly.

However, we agree with Judge Cedarbaum that the injury

here is not the earache, but the application of scalding water

to treat it. The earache was caused by the change in air pres-

sure, which is part of the normal operation of the plane as it

descends, and was not an accident. All the harm alleged by

both plaintiffs flows from the scalding, which is easily seen as

accidental.

Mrs. Fishman argues that her personal claims are solely for

emotional harm and are therefore outside the scope of Article

17. We conclude that these claims for emotional harm are

subject to Article 17 nevertheless because the claims arise

from an accident--the scalding of her child. As we have al-

ready stated, Article 17 premises a carrier’s liability on

whether “a passenger’s injury is caused by an unexpected or

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unusual event or happening that is external to the passenger.”

Saks, 470 U.S. at 405; cf. Tseng v. El Al Israel Airlines, Ltd.,

--- F.3d ---- (2d Cir.1997) (Warsaw Convention does not

cover claim for personal injuries not arising from an acci-

dent). However, while all claims resulting from an “accident”

are within the ambit of Article 17, not every such claim is

compensable. The Supreme Court expressly held in Eastern

Airlines, Inc. v. Floyd, 499 U.S. 530, 111 S.Ct. 1489, 113

L.Ed.2d 569 (1991), that damages for purely mental injuries

are not recoverable. Id. at 534, 552. Thus, when Mrs. Fishman

emphasizes that the only harm she suffered is emotional, she

proves too much. Such claims are within the scope of Article

17 and therefore preempted, but she cannot recover any dam-

ages for such injuries under Floyd. Cf. In re Air Disaster at

Lockerbie, Scotland, 928 F.2d 1267, 1273-76, 1282 (2d

Cir.1991) (Article 17 permits only compensatory damages,

but preempts state law claims for punitive damages). Ac-

cordingly, we hold that all of the claims of both Penina and

Michelle Fishman are accident claims under Article 17. [FN1]

*4 Our ruling today reinforces the holding in Tseng v. El

Al Israel Airlines, Ltd., --- F.3d at ----, a recent decision of

this Court. The issue presented in Tseng was whether an inva-

sive but routine security search of a passenger thought to pre-

sent a possible risk of terrorism could be considered an

“accident” covered by Article 17. A panel of this Court held

that the search was not such an accident for three interrelated

reasons. First, in general, a security search of an international

airline passenger is “a routine procedure of international air

traffic,” id. at ----, and passengers can reasonably expect to

undergo such scrutiny when they travel by air. Id. at ----. Sec-

ond, more specifically, the particular search conducted by the

defendant in Tseng was called for by the airline’s normal,

everyday procedure, and did not deviate from it. Third, the

search was incident to the prevention of terrorism, a purpose

that the Convention was not intended to derogate.

In sum, Tseng holds that a plaintiff's unusual reaction to a

routine and expected incident of airline travel, including any

procedure that is conducted in the routine and expected

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manner, is no accident within the meaning of the Convention.

Thus, an individual nauseated by a bumpy ride or standard

airline fare or--as in Tseng--a person squeamish about a pre-

flight search, cannot allege an injury resulting from an acci-

dent under Article 17. By the same token, a claim does allege

an “accident” if it arises from some inappropriate or unin-

tended happenstance in the operation of the aircraft or airline.

Thus, an injury resulting from routine procedures in the op-

eration of an aircraft or airline can be an “accident” if those

procedures or operations are carried out in an unreasonable

manner. (The result in Tseng might have been different had

the plaintiff been harmed by an unreasonably rough and inva-

sive search.)

The application of a hot compress to Penina’s ear may have

been a routine measure for relieving the pain suffered by pas-

sengers incident to the descent of the aircraft; but the measure

was carried out in a way (using excessive, scalding water) that

was not expected, usual, normal, or routine. We conclude that

the burning of Penina Fishman (and each of the claims arising

from that incident) was an Article 17 accident.

B. Applicability of Local Tolling Provisions to

Warsaw Convention Time Limitations.

Plaintiffs’ filing of suit more than two years after their

flight’s arrival in New York exceeds the time limitation fixed

in Article 29 of the Convention, subsection (1):

The right to damages shall be extinguished if an ac-

tion is not brought within 2 years, reckoned from

the date of arrival at the destination, or from the

date on which the aircraft ought to have arrived, or

from the date on which the transportation stopped.

*5 49 U.S.C. § 40105 note. Plaintiffs contend however that

under New York law, the two-year limitations period should

be tolled during Penina’s infancy, see N.Y. C.P.L.R. § 208

(McKinney 1990), and that such tolling is allowed under sub-

section (2) of Article 29, which provides:

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The method of calculating the period of limitation

shall be determined by the law of the court to which

the case is submitted.

49 U.S.C. § 40105 note.

This tolling issue presents a preliminary but not necessarily

controlling question as to whether the period is a statute of

limitations or a condition precedent. Compare Molitch v. Irish

Int’] Airlines, 436 F.2d 42, 43 (2d Cir.1970) (referring to Ar-

ticle 29(1) as a statute of limitations), with Kahn v. Trans

World Airlines, Inc., 82 A.D.2d 696, 443 N.Y.S.2d 79, 87 (2d

Dep’t 1981) (“[T]he time limitation incorporated in article 29

was intended to be in the nature of a condition precedent to

suit.”). Ordinarily, a time limitation is deemed a condition

precedent if it is fixed in the statute that creates the cause of

action, whereas a statutory time limitation must be pleaded as

the affirmative defense of statute of limitations if the cause of

action was previously cognizable either at common law or by

virtue of another statute. See Romano v. Romano, 19 N.Y.2d

444, 447, 280 N.Y.S.2d 570, 227 N.E.2d 389 (1967); Clark v.

Abbott Labs., 155 A.D.2d 35, 553 N.Y.S.2d 929, 933 (4th

Dep’t 1990). We have already held that the Warsaw Conven-

tion creates the causes of action asserted under it. See Benja-

mins v. British European Airways, 572 F.2d 913, 919 (2d

Cir.1978) (Lumbard, J.); see also Pescatore v. Pan American

World Airways, Inc., 97 F.3d 1, 12 (2d Cir.1996). Accord-

ingly, the time limitation in Article 29 is best termed a condi-

tion precedent to suit, a kind of limitation that is often deemed

not subject to tolling. See Pearl River Union Free School

Dist., 51 N.Y.2d 256, 264, 434 N.Y.S.2d 138, 414 N.E.2d 639

(1980); Dreger v. New York State Thruway Auth., 177

A.D.2d 762, 575 N.Y.S.2d 743, 744 (3d Dep’t 1991).

The district court determined that the language of Article

29 was ambiguous, and therefore based its conclusion that

tolling was inappropriate on an analysis of the negotiating

history of the treaty. Plaintiffs argue that the Warsaw Con-

vention is unambiguous; that it unambiguously allows tolling

under the rules of the forum; that these conclusions were

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reached by the French Cour de Cassation; and that the con-

struction of the tolling provision by that court is particularly

persuasive because the Convention was drafted in French. We

reject all of these propositions.

In interpreting the Warsaw Convention, we look first to the

literal language of the treaty and go no further if that language

is reasonably susceptible to no more than one interpretation.

See Tai Ping Ins. Co. v. Northwest Airlines, Inc., 94 F.3d 29,

31 (2d Cir.1996). We agree with the district court that the

language of Article 29 is reasonably susceptible to conflicting

interpretations. See Fishman, 938 F.Supp. at 230. On the one

hand, as plaintiffs argue, the wording in Article 29(2) that

leaves to the forum the “method of calculating the period of

limitations” could be taken to encompass the forum’s tolling

provisions. Three district court opinions have so held. See

Halmos v. Pan American World Airways, Inc., 727 F.Supp.

122, 123 (S.D.N.Y.1989); Joseph v. Syrian Arab Airlines, 88

F.R.D. 530, 532 (S.D.N.Y.1980); Flanagan v. McDonnell

Douglas Corp., 428 F.Supp. 770, 776 (C.D.Cal.1977); see

also Royal Ins. Co. v. Emery Air Freight Corp., 834 F.Supp.

633, 635 (S.D.N.Y.1993) (“method of calculating” language

“could be interpreted as allowing local statutes of limitations

to modify the two-year limitations period”). On the other

hand, the same wording can be read merely to invoke the

power of the forum court to determine whether the plaintiff

accomplished the filing within the limitation period, a ques-

tion that may involve (for example) the proper party or agent

for receipt of process, and the means of service--in other

words, matters bearing upon when an action has been

“brought.” One court has concluded that this is the clear and

unambiguous meaning of the Article 29 language. See Data

General Corp. v. Air Express Int’! Co., 676 F.Supp. 538, 540

(S.D.N.Y.1988).

*6 Because the language of Article 29 is susceptible to at

least two plausible interpretations, we turn to the negotiating

history of the Convention to resolve the ambiguity. See Tai

Ping Ins. Co., 94 F.3d at 31 (When the text of a treaty is un-

clear, “[wje may apply traditional methods of

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interpretation.”). The Supreme Court has explicitly sanctioned

the use of a treaty’s legislative history to understand its

meaning. See Zicherman v. Korean Air Lines Co., 516 US.

217, 116 S.Ct. 629, 634, 133 L.Ed.2d 596 (1996) (“Because a

treaty ratified by the United States is not only the law of this

land ..., but also an agreement among sovereign powers, we

have traditionally considered as aids to its interpretation the

negotiating and drafting history (travaux preparatoires) and

the Post-ratification understanding of the contracting par-

ties.”); Saks, 470 U.S. at 396 (“Treaties are construed more

liberally than private agreements, and to ascertain their

meaning we may look beyond the written words to the history

of the treaty, the negotiations, and the practical construction

adopted by the parties.”) (quoting Choctaw Nation of Indians

v. United States, 318 U.S. 423, 431-32, 63 S.Ct. 672, 87 L.Ed.

877 (1943)).

Almost every court that has reviewed the drafting minutes

of the Convention, including the district court in this case, has

rejected the contention that Article 29(2) incorporates the

tolling provisions otherwise applicable in the forum. See, e.g.,

Castro v. Hinson, 959 F.Supp. 160, 163 (E.D.N.Y.1997);

Fishman, 938 F.Supp. at 230; Royal Ins. Co., 834 F.Supp. at

636; Kahn, 443 N.Y.S.2d at 87. The minutes reveal that the

drafters of the Convention specifically considered and re-

jected a proposed provision that would have allowed the

limitations period to be tolled according to the law of the fo-

rum court. See R.C. Horner and D. Legrez, Minutes of the

Second International Conference on Private Aeronautical

Law, 110-13 (1975); Kahn, 443 N.Y.S.2d at 86-87; Royal Ins.

Co., 834 F.Supp. at 636. As the district court recognized, the

main concern of the drafters in rejecting the tolling proposal

was “to remove those actions governed by the Convention

from the uncertainty which would attach were they to be sub-

jected to the various tolling provisions of the laws of the

member states.” Kahn, 443 N.Y.S.2d at 87. Moreover, the de-

bates over the language ultimately adopted in Article 29 indi-

cate that the only matter to be referred to the forum court by

subsection 2 of Article 29 was “the determination of whether

the plaintiff had taken the necessary measures within the

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two-year period to invoke that particular court’s jurisdiction

over the action.” Id.

*7 Plaintiffs focus on the minutes of the negotiating session

that followed the one in which the drafters discussed and re-

jected the proposal to amend Article 29 to permit tolling.

Plaintiffs say that these minutes raise difficult questions re-

garding the intent behind Article 29, and the significance to

be accorded the rejection of the tolling proposal. These pas-

sages from the minutes are far from clear, and they seem

hardly relevant. An amendment was proposed that would

have expressly allowed what plaintiffs want to do; a reason

for rejecting that proposal (the uncertainty of various tolling

provisions would frustrate the strict two year limit) was

clearly articulated; and the proposal was rejected on the mer-

its. Subsequent statements by individual delegates, however

ambiguous, do not alter our understanding of the intent be-

hind the enactment of the language in Article 29. [FN2]

Plaintiffs direct our attention to the decision of France’s

Cour de Cassation in Lorans v. Air France (Cour de Cassation

[Assemblee Pleniere] Jan. 14, 1977). According to treatises

cited by plaintiffs (no copy of the opinion was furnished to

us), that court ruled that the running of the Article 29 time

limitation can be suspended by reason of minority status. Ac-

cording to plaintiffs, the French court reasoned that in order

for an international convention to replace municipal law, the

text of the convention must unequivocally establish that the

ordinarily applicable municipal law must be set aside. Plain-

tiffs also rely upon the argument articulated by the French

First Avocat-General in Lorans, to the effect that since the

Warsaw Convention was open to adhesion by states (like the

United States) that were not party to the negotiations or the

drafting of the text, those nations are bound only by the letter

of the text. We are unpersuaded.

The Lorans decision proceeds along lines that are foreign to

the principles of treaty construction adopted by our legal sys-

tem. As we said above, United States courts look to the legis-

lative history of a treaty when the textual language is

bie

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ambiguous. Whether or not the United States was a High

Contracting Party to the Warsaw Convention has no discerni-

ble bearing on the rules of construction set out by the Su-

preme Court and this Court. See Zicherman, 116 S.Ct. at 634;

Saks, 470 U.S. at 396; Tai Ping Ins. Co., 94 F.3d at 31.

Finally, plaintiffs raise for the first time on appeal causes of

action based upon defendant’s alleged breach of certain rules

in the Code of Federal Regulations. These claims were not

asserted in the complaint, and were never mentioned at any

point in the district court proceedings. We will not consider

them now. See Lo Duca v. United States, 93 F.3d 1100, 1104

(2d Cir.) (as a matter of prudence a federal appellate court

generally will not consider an issue not passed upon below),

cert. denied, --- U.S. ----, 117 S.Ct. 508, 136 L.Ed.2d 399

(1996).

CONCLUSION

*8 The judgment of the district court dismissing plaintiffs’

complaint is affirmed.

FN1. We therefore have no occasion to consider whether Mrs.

Fishman could recover had she suffered emotional injury

coupled with physical injury. The Supreme Court has not spe-

cifically addressed this issue, see Floyd, 499 U.S. at 552-53,

although some lower courts have permitted such recovery.

See In re Inflight Explosion on Trans World Airlines, Inc.,

778 F.Supp. 625, 637 (E.D.N.Y.1991) (the implication of

Floyd is that psychological injury accompanying physical in-

jury is covered by Article 17) (Weinstein, J.), rev'd on other

grounds, 975 F.2d 35 (2d Cir.1992); see also In re Aircrash

Disaster Near Roselawn, Indiana, 954 F.Supp. 175, 178-79

(N.D.II1.1997) (recovery permitted for pre-impact fear if ac-

companied by physical injury or death in accident); Jack v.

Trans World Airlines, Inc., 854 F.Supp. 654, 664-668

(N.D.Cal.1994) (recovery allowed for emotional distress

flowing from impact injuries or for emotional distress with

physical manifestations).

leila aimee

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FN2. We also reject plaintiffs’ reliance on the minutes of the

1971 Guatemala City Conference. See generally Floyd, 499

U.S. at 550 (Guatemala City Protocol not dispositive in inter-

preting Warsaw Convention because the United States Senate

has not ratified the Protocol, and only a few of the 120 sig-

natories of the Warsaw Convention have adopted it.)

END OF DOCUMENT