Petition for Writ of Certiorari — Piamba Cortes v. American Airlines, Inc.

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(V) FILED

No._-_. 99 +846 NOV j 61999

INTHE | QEEICE OF THE CLERK

Supreme Court of the United States

o> 2

DORIS PIAMBA CORTES,

Petitioner,

—_—V.—

AMERICAN AIRLINES, INC.,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Piaintiffs’ Committee Counsel

Marc S. Moller Robert L. Parks

Counsel of Record HAGGARD, PARKS & STONE

KREINDLER & KREINDLER 330 Alhambra Circle

100 Park Avenue Coral Gables, Florida 33134

New York, New York 10017

(212) 687-8181

Aaron S. Podhurst

Chairman of the Plaintiffs’

Committee

PODHURST ORSECK JOSEFSBERG

EATON MEADOW OLIN & PERWIN

25 West Flagler Street

Miami, Florida 33130

—and—

Joel Perwin

Timothy Cook

Kevin Malone

Carlos Velasquez

Ira Leesfield

Stuart Grossman

Jorge Ortiz Brunet

On the Petition

Blanca J. Rodriguez

KREINDLER & KREINDLER

a rs

Q0' a ¢

QUESTION PRESENTED FOR REVIEW

Article 25 of the 1929 Warsaw Convention Treaty, which

governs international air transportation, provides that the airline

shall not avail itself of the treaty provisions which limit its

liability when the damage is caused by either the airline's "wilful

misconduct" or by such fault that is considered to be its equivalent

under forum law. The question presented is:

] Whether willful misconduct under Article 25 permits

proof of "reckless disregard of the consequences"

according to an objective prudent person standard, the test

typically used in tort law, or requires application of a

subjective standard of the flight crew’s actual knowledge

of the probability of harm, the test typically used in

criminal law, an issue as to which the courts of appeals

are in conflict.

LIST OF PARTIES TO THE PROCEEDING

In addition to Petitioner-plaintiff Doris Piamba Cortes, the

following plaintiffs remain as parties to the multidistrict litigation

proceeding In re Air Crash Near Cali, Colombia on December 20,

1995, 96-MDL-1125 (S.D. Fla.), and are bound by the decision

below of the Court of Appeals for the Eleventh Circuit vacating

summary judgment against defendant American Airlines, Inc., and

remanding to the District Court for a determination of liability:

Rosalba Marmolejo; Libia A. de Oviedo; Juan Carlos Gomez;

Penuca de la Serna Zabala; Diego Fernando Diosa; Jamie

Montero; Manuel Rosado; Luis Antonio Castro, Sr. (2 decedents);

Gustavo Nifio Sua; Florencia Espinosa Vidal; Pedro Alvarez;

William Oldham (2 decedents); Maria Garcia; Eduardo Posso (2

decedents); Yaneth Martinez; Sylvia Bullard (2 decedents); Lucia

Gallego; Beatriz Elena Tabares Lemos; Oneida Hernandez Castro;

Yamileth Lopez; M. Amparo Hurtado; Albert Galvis and Sarah

Carlson; Mercedes Lyliana Ramirez; Maria Julisa Mestre; Carmen

Lucia Fahey; Raysa Sosa; Carlos H. Concha; Fernando Jimenez;

and Franklin LaTorre.

The defendant is American Airlines, Inc.

‘aii

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ................. i

LIST OF PARTIES TO THE PROCEEDING ............ li

po ee ee ili

SA OP AUTIIORITIBG 20605 c ccc ccc cccsccces Vv

oid pice c sasaki nendeeecees l

A ee ee ae 2

PROVISIONS OF LAW INVOLVED .................. 2

Damameeees OF THE CASE 6.0.55. cece ccc ccccces 3

REASONS FOR GRANTING THE PETITION ........... 9

I. CERTIORARI SHOULD BE GRANTED

TO RESOLVE THE CONFLICT IN THE

CIRCUITS AND REFINE TREATY

INTERPRETATION METHODOLOGY ... .10

A. There Is Conflict In the Federal

RN at ee ees Dee a 10

B. Under the Circumstances, the

Eleventh Circuit Should Have

Given Controlling Weight to the

Executive Branch's Opinion that

Article 25 Incorporates Objective

ss cba ous ok kee s 17

CONCLUSION

(I FA inn 405 ko 5D CRN eae eee

The Interpretations of the Executive

Branch and the Second and Ninth

Circuits Are Consistent with the

Treaty Text and Its Drafting

History. The Eleventh Circuit Did

Not Heed the Treaty Text and Is in

Conflict With the Drafting History. .

The Decision below Conflicts with

the Weight of Foreign Precedent.

The Interpretations of the Executive

Branch and the Second and Ninth

Circuits Are Consistent With the

Weight of Foreign Precedent ......

The Court of Appeals Misread the

Hague Minutes and Impermissibly

Allowed That Reading of a Treaty

Protocol to Override a Reasonable

Interpretation of the Original Text

And Drafting History of Article 25 .

eee ee eee eevee eeeeeeeeeeeeeveeeseeeeee

TABLE OF AUTHORITIES

FEDERAL CASES

Page

In re Air Crash Near Cali, Colombia on December 20, 1995,

985 F. Supp. 1106 (S.D. Fla. 1997) .............. 1,4

Air France v. Saks, 470 U.S. 392 (1985). ............. 10, 21

American Airlines, Inc. v. Ulen, 186 F.2d 529

PR GR Bes Ae oxo Se wie eNG ae keks 12, 15, 26

Bacardi Corp. v. Domenech, 311 U.S. 150 (1940). ...... a1. 20

Berner v. British Comm. Pacific Airlines, Ltd., 346 F.2d

532 (2d Cir. 1965), cert. denied, 382 U.S. 983

i Renee ne ec mayen gem Eee 13,19

Block v. Air France, 386 F.2d 323 (Sth Cir. 1967),

cert. denied, 392 U.S. 905 (1968) ................ 10

Butler v. Aeromexico, 774 F.2d 429 (11th Cir. 1985)........ 4,

10, 16

Chan v. Korean Air Lines, Co., Ltd., 490 U.S. 122 (1989)... .10

Consumer Product Safety Commission v. GTE Sylvania,

Bec O47 UB. VOR CIDER) occ ie bch eadesinnes 21, 29

Cortes v. American Airlines, Inc., 177 F.3d 1272

ee te A | Re ere ee eee passim

Eastern Airlines, Inc. v. Floyd, 499 U.S. 530 (1991)..... 10, 21

El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155 (1999)... .. 10

Farmer v. Brennan, 511 U.S. 825 (1994) ............. 11,12

Grey v. American Airlines, Inc., 227 F.2d 282 (2d Cir. 1955),

cert. denied, 350 U.S. 989 (1956).......... 12, 13, 18

KLM Royal Dutch Airlines of Holland v. Tuller, 292 F.2d

775 (D.C. Cir.), cert. denied, 368 U.S. 921 (1961)... 16

Koirala v. Thai Airways, International Ltd., 126 F.2d 1205

OG Ce. IST. cH AR 11,15

Landgraf v. U.S.I. Film Products, 511 U.S. 244 (1994) ..... 28

New York Indians v. United States, 170 U.S. 1 (1898) ...... 17

O'Connor v. United States, 479 U.S. 27 (1986). ........... 20

Pekelis v. Transcontinental & Western Air, Inc., 187 F.2d

122 (2d Cir.), cert. denied, 341 U.S. 951

‘til SP Pepe Segre See te 12, 14, 18

Rivers v. Roadway Express, Inc., 511 U.S. 298 (1994)...... 28

Saba v. Air France, 78 F.3d 664 (D.C. Cir. 1996)....... 6, 11,

15, 16

Societe Nationale Industrielle Aerospatiale v. U.S. District

Court for Southern District of Iowa, 482 U.S. 522

Sumitomo Shoji American, Inc. v. Avagliano, 457 U.S.

576 CIDER oo iv cacdvacencnerasveusecupessess 20

Vii

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

FR re Fr nee Or ree 10

Tug Ocean Prince, Inc. v. United States, 584 F.2d 1151

(2d Cir. 1978), cert. denied, 440 U.S. 959

SEO E ccs bdub evn deavietedadekens 5,6, 11, 14, 19

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

i. Apres tr yore apes ory res © mer ee 10, 22, 23

STATE CASES

Fremont Homes, Inc. v. Elmer, 974 P.2d 952 (Wy. 1999) ...14

Kalisch-Jarcho, Inc. v. City of New York, 448 N.E.2d 413

ok | ee ree Pe pe re rr ee 14

Plant v. Thompson, 221 S.W.2d 834 (Mo. 1949) .......... 14

FOREIGN CASES

Judgment of April 16, 1975, Ciolkowski v. Air France,

1976 R.F.D.A. 105 (Sup. Ct. France)............. 26

Judgment of April 17, 1958, Collet v. Sabena, 12 R.F.D.A.

411 (1958) (Trib. 1st Instance Brussels)........... 27

Judgment of April 24, 1952, Broche-Hennessy v. Air France,

6 R.F.D.A. 199 (1952) (Trib. Civil Seine), affd,

Judgment of February 25, 1954, 8 R.F.D.A. 45 (1954)

CO oe Perr rrrrerr er eee ete 26

Judgment of May 10, 1974, 1974 E.T.L. 630

(Bundes-gerkittshof) ...... 2... cccccccccccccees 27

Viii

Judgment of July 11, 1972, JT 19741 80 (Swiss Sup. Ct.). . . .26

Judgement of November 14, 1967, JT 1968 1 526

I iia S86 eee re oS 25

FEDERAL STATUTES

Pe ay, GUN isd hind os en Cc ew KE 2

Convention for the Unification of Certain Rules Relating to

International Transportation by Air, October 12,

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

SF Oe Oe i in Se ok Aa passim

Montreal Protocol No. 4 to Amend the Convention for

the Unification of Certain Rules Relating to

International Carriage By Air, Signed at Warsaw

October 12, 1929, as amended by the Protocol

Done at the Hague on September 8, 1955, reprinted

in S. Exec. Rpt. No. 105-22, pp. 21-32 (1998). . . passim

OTHER AUTHORITIES

6A Corbin Om Contracts $1472... 6 oi oc iccccdvnces, 11,14

Dahl's Law Dictionary, French-English (Paris 1995). ....... 21

Elliot, "Degrees of Negligence," 6 So. Cal. L. Rev. 81 (1932).13

Goldhirsch, Lawrence B., The Warsaw Convention

Annotated: A legal Handbook, (Kluwer 1988)........ 6

Holmes, Collected Legal Papers (1920) ..............0.. 15

International Conference on Private Air Law, The Hague,

September 1955, ICAO Doc. 7686-LC/ 140,

Wb OEE fkhoa No iho ka 7, 4a,48

Jourdain, P., Droit a Réparation, Responsabilité Civile,

Ne IN i oi hin oe & baka cece 12

Lowenfeld and Mendelsohn, "The United States and

The Warsaw Convention," 80 Harvard L. Rev.

I a 28

Prosser and Keaton on Torts (5th ed. 1984)

Restatement (Second) of Torts ................. 7, 14, 18, 19

Second International Conference on Private Aeronautical

Law, Oct. 4-12, 1929, Warsaw, Minutes (Robert C.

Horner & Didier Legrez trans. 1975). . .8, 12, 16, 23, 24

S. Exec. Rpt. 105-20 (1998) .................00008e passim

Williston On Contracts (3d ed.) .... 2... e ccc eceee eee. 14

Yokaris, A., "La Jurisprudence de tribunaux grecs sur la

Convention de Varsovie," 1977 R.F.D.A. 125 (1977) .27

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1999

No.

DORIS PIAMBA CORTES,

Petitioner,

-V.-

AMERICAN AIRLINES, INC.,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the Court of Appeals for the Eleventh

Circuit (App. A, 1a-57a)' is reported at 177 F.3d 1272 (11th Cir.

1999). It reversed the opinion of the district court granting partial

summary judgment against American Airlines in In re Air Crash

Near Cali, Colombia on December 20, 1995, 985 F.Supp. 1106

(S.D. Fla. 1997). (App. B, 58a - 157a).

' References herein to "App. __" are to the Appendix to this Petition and

references to" _a" are to the pages in the Appendix.

JURISDICTION

The judgment of the Court of Appeals (App. C, 158a-

159a) was entered on June 15, 1999. By order dated August 18,

1999 (App. D, 160a-161a), the Court of Appeals denied a petition

for rehearing en banc, treated by that court as a petition for

vehearing. The jurisdiction of this Court is invoked under 28

U.S.C. §1254(1).

PROVISIONS OF LAW INVOLVED

This case involves interpretation of Article 25 of the

Warsaw Convention Treaty’ and the impact, if any, that Article 25

of the Montreal Protocol No. 4 has in interpreting Article 25 of the

Warsaw Convention and in this case.’

WARSAW CONVENTION

Article 25

(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 accordance with the law of the Court to

which the case is submitted, is considered to be equivalent to

2 Convention for the Unification of Certain Rules Relating to International

Transportation by Air, October 12, 1929, 49 Stat. 3000, T.S. No. 876

(1934), reprinted in note following 49 U.S.C. §40105 (Warsaw

Convention).

> Montreal Protocol No. 4 to Amend the Convention for the Unification of

Certain Rules Relating to International Carriage By Air, signed at Warsaw

on October 12, 1929, as amended by the Protocol Done at the Hague on

September 8, 1955, reprinted in S. Exec. Rpt. No. 105-20, pp. 21-32 (1998)

(Montreal Protocol No. 4).

wilful misconduct.

(2) Similarly the carrier shall not be entitled to avail

himself of the said provisions, if the damage is caused under the

same circumstances by any agent of the carrier acting within the

scope of his employment.

MONTREAL PROTOCOL NO. 4

Article 25

Im the carriage of passengers and baggage, the limits of

liability specified in Article 22 shall not apply if it is proved that

the damage. resulted from an act or omission of the carrier, his

servants, or agents, done with intent to cause damage or recklessly

and with knowledge that damage would probably result; provided

that, in the case of such act or omission of a servant or agent, it is

also proved that he was acting within the scope of his

employment.

STATEMENT OF THE CASE

Om December 20, 1995, American Airlines Flight 965,

bound for Cali, Colombia from Miami International Airport,

crashed imto a mountain while attempting to land in Cali. 158

passengers and the eight crew members died, and another four

passengers suffered serious injuries. Over 150 lawsuits were filed

against American Airlines and consolidated and transferred to the

Southern District of Florida. The passenger claims are governed

by the Warsaw Convention. Under Article 22, as modified by the

1966 Momtreal Agreement, the airline's liability is capped at

$75,000 per claim, unless the plaintiffs establish willful

misconduct under Article 25.4

Plaintiffs moved for partial summary judgment on the

issue of the crew’s willful misconduct. The district court applied

Butler v. Aeromexico, 774 F.2d 429 (11th Cir. 1985), defining

willful misconduct as including acts committed in "reckless

disregard of the consequences." The court ruled that reckless

disregard under Butler meant objective recklessness. App. B, 99a-

101a. The court concluded that plaintiffs, in any event, had met

both a subjective and an objective recklessness standard as a

matter of law and granted partial summary judgment. App. B,

122a.

The Cortes case proceeded to a damages trial and a verdict

was entered in favor of the plaintiff. American Airlines appealed

to the Court of Appeals on May 6, 1998, seeking, inter alia,

reversal of the partial summary judgment on liability, arguing that

Article 25 required proof of the crew’s subjective recklessness, as

to which there was a triable issue of fact.

While the appeal was pending in the Eleventh Circuit, and

after oral argument, the Senate ratified Montreal Protocol No. 4

("MP4"), an amendment to the Warsaw Convention. It went into

force in the United States on March 4, 1999.5 The parties were

* The Warsaw Convention uses the spelling "wilful misconduct." The more

usual spelling is "willful misconduct," which will be used here except when

quoted text requires otherwise.

> Montreal Protocol No. 4 and its companion Montreal Protocol No.3 were

drafted in 1975 and submitted to the Senate in 1977 for ratification as a

unified package. The Senate did not approve ratification because of its

unhappiness with the passenger liability cap in Montreal Protocol No. 3. S.

Exec. Rpt. No. 105-20 at 6. By 1998, however, most of the world’s major

airlines had signed inter-carrier agreements prepared in 1995 by the

(continued...)

requested to submit supplemental briefs on the impact, if any, of

MP4 in the case, in particular, its amended Article 25. Plaintiffs

pointed out to the Court of Appeals that the Executive Branch, in

response to questioning from the Senate, interpreted amended

Article 25 of MP4, which was lifted from the 1955 Hague

Protocol, as incorporating the pre-existing objective reckless

disregard standard for willful misconduct under the Warsaw

Convention .

The Court of Appeals nonetheless held that amended

Article 25 was a clarification of the original treaty's intent to

require application of the more onerous subjective reckless

disregard standard. In so holding, the Eleventh Circuit put itself

in conflict with other circuits, the Executive Branch, the text of

Article 25 and its drafting history, the weight of foreign

precedents, and the Senate’s understanding in consenting to

ratification of MP4.

The Court of Appeals first found that its earlier decision

in Butler did not answer whether the reckless disregard standard

for willful misconduct requires proof of the flight crew's actual

knowledge of probability of harm from their acts - the subjective

recklessness test - or is satisfied by proof of what the crew should

have known - the objective recklessness test. It examined other

case law and interpreted Second Circuit case law on Article 25 as

implicitly requiring the airline's actual knowledge that damage

would probably result. App. A, 19a. The court failed to address

Tug Ocean Prince, Inc. v. United States, 584 F.2d 1151, 1163 (2d

. (...continued)

International Air Transport Association ("IATA"), by which the airlines

waived the Article 22 liability cap, rendering Article 25 irrelevant for future

Warsaw Convention cases. Jd. at 6, 13-15. Accordingly, in 1998 the

Executive Branch and the Senate became willing to ratify MP4, which

provided much-needed cargo transport reform. /d. at 1, 3-4. Montreal

Protocol No. 3 was not ratified.

Cir. 1978), cert. denied, 440 U.S. 959 (1979), in which the Second

Circuit heid that Article 25 incorporated an objective prudent

person test to assess the knowledge element in recklessness. The

court below noted that the District of Columbia Circuit, in Saba

v. Air France, 78 F.3d 664, 669-70 (D.C. Cir. 1996), also

appeared to require proof of subjective recklessness. App. A, 18a,

20a.

Finding the case law to be ambiguous, the Court of

Appeals also examined foreign precedents. Relying on cases cited

by Lawrence B. Goldhirsch in The Warsaw Convention

Annotated: A Legal Handbook, 121 (Kluwer 1988), the court

noted that according to Goldhirsch, France, Germany, Greece and

Korea apply objective tests to the unamended treaty, while

Switzerland applies a subjective test. App. A, 2la. The cases

Goldhirsch cited were not Warsaw Convention cases, as the court

believed, but rather, were Hague Protocol cases, which applied the

amended Article 25 that was later carried over to MP4. Despite

the weight of foreign precedent favoring the objective test for

even amended Article 25, the Court of Appeals dismissed these

cases as inconsistent and ambiguous, finding that "this ambiguity

supports a conclusion that Montreal Protocol No. 4 clarifies,

rather than effects, a substantive change to Article 25." Jd.

The Court of Appeals next examined Article 25 of MP4.

The court admitted that MP4 has no statement of clarifying intent.

Its amended Article 25, lifted from the Hague Protocol, which the

United States did not ratify, allows a bypass of the treaty's

damages cap when the carrier's acts are done "with intent to cause

damage or recklessly and with knowledge that damage would

probably result." In examining the 1955 Hague Minutes, the court

concluded that those drafters were in uniform agreement that

amended Article 25 required subjective knowledge for

recklessness and that this was a clarification of the original treaty.

The court relied on the following: the Hague drafters’ intent to

adopt language that corresponded to the common law willful

misconduct test; Great Britain’s comment that “knowledge of the

probable consequences" has been a requirement in English law;

and the United States’ comment that the new language

corresponded to ‘American Jurisprudence." App. A, 22a-23.

The court did not address the unresolved debate at the

Hague concerning the susceptibility of "recklessly and with

knowledge" to interpretation as either requiring actual knowledge

or permitting imputed knowledge. The Court of Appeals also

failed to consider that in eliminating the Article 25 reference to

forum law and adopting language that tracked the Anglo-Saxon

notion of willful misconduct, the Hague drafters had adopted

language substantively different from the original French text of

Article 25. See International Conference on Private Air Law, The

Hague, September 1955, ICAO Doc. 7686-LC/140, Vol. 1,

Minutes, 162-178 (Hague Minutes) (comments of various

delegates explaining the quid pro quo relationship between

doubling the liability cap in Article 22 and amending Article 25

to both delete reference to forum law for equivalents to "dol" and

adopt the Anglo-Saxon definition for willful misconduct, which

would now require civil law courts to analyze recklessness, as

opposed to "faute lourde" (gross negligence)).

The court also examined the MP4 ratification history. It

studied the response of the Departments of State and

Transportation to the Senate's concern about the domestic impact

of amended Article 25. The Executive agencies opined that

amended Article 25 would not modify the United States standard

for breaking the liability cap, because it incorporated the objective

recklessness standard that already existed in American law. The

Executive agencies specifically relied on the Second Circuit's

definition of willful misconduct and stated that amended Article

25 also incorporated the objective reckless disregard test of the

Restatement (Second) Torts, §500. S. Exec. Rpt. 105-20 at 52-53.

The Court of Appeals, however, because it had mistakenly

assumed that the Second Circuit required subjective recklessness,

could not understand why the Executive Branch had concluded

that Article 25, both original and amended, incorporated the

Restatement's objective recklessness standard. App. A, 24a-25a,

n.9. The court rejected the Executive Branch's incorporation of an

objective test as incomprehensible error.

At length, the Court of Appeals looked to the drafting

history of the Warsaw Convention. It noted that the British

delegate, Sir Alfred Dennis, stated that the French term "dol" in

Article 25 would be translated into English as "wilful

misconduct," which he said included all that the civil law

delegates wanted and which he defined as "cover[ing] not only

deliberate acts but careless acts done without regard for the

consequences." App. A, at 26a, citing the Warsaw Minutes at

213.6 The court acknowledged that this "characterization of

willful misconduct suggests that the standard may be satisfied

without establishing that the carrier knew its actions placed its

passengers at risk," but dismissed this possibility, because "the

language adopted by the conference does not expressly embody

this characterization." App. A, 26a-27. The court never

considered that Article 25 allows application of forum law to

determine legal equivalents to "dol" and "wilful misconduct." The

court dismissed the 1929 drafting history as ambiguous on the

knowledge requirement for recklessness and believed that the

statements made more than 25 years later at the Hague were, by

contrast, “uniform and clear" and required proof of subjective

knowledge as original treaty intent. App. A, 27a.

The court concluded that Article 25, as clarified by MP4,

® Second International Conference on Private Aeronautical Law, Oct. 4-12,

1929, Warsaw, Minutes (Robert C. Horner & Didier Legrez trans. 1975)

("Warsaw Minutes").

required subjective knowledge. The court reversed summary

judgment, finding a triable issue of fact as to whether the flight

crew subjectively knew how significantly off course they were,

even though, as the court admitted, the crew knew they were off

course in mountainous terrain and knowingly descended, and even

though they should have known how far off course they were

according to their instruments and other cockpit information.

App. A., 32a-36a.

REASONS FOR GRANTING THE PETITION

The federal circuits are in conflict as to whether Article 25

incorporates: the tort law's objective recklessness standard or

requires proof of criminal subjective recklessness before plaintiffs

are entitled to full compensation. The Second and Ninth Circuits

have adopted an objective recklessness standard, consistent with

tort and contract law. This is also the Executive Branch’s

interpretation and is the shared view of other signatory states. The

District of Columbia and Eleventh Circuits, however, have

departed from their own prior case law, the case law of other

circuits, the opinion of the Executive Branch, the treaty text and

drafting history, and the weight of precedent in foreign courts and

have required proof of criminal subjective recklessness.

The opinion below also raises important questions of

treaty interpretation. One is the proper weight to be accorded

Executive Branch construction of treaties. Another is whether

treaty interpretation gained from the drafting history of a

subsequent treaty protocol can ever override the reasonable

interpretation of a treaty that can be gleaned from the original text

and its own negotiations history. These questions arise as to a

treaty that has on numerous occasions been the subject of review

in this Court, because of the especially difficult task of

interpreting a treaty drafted in French, using civil law legal

concepts.’

Certiorari review will give this Court the Opportunity to

refine treaty interpretation methodology, resolve a conflict,

correct fundamental error and prevent injustice.

CERTIORARI SHOULD BE GRANTED TO RESOLVE

THE CONFLICT IN THE CIRCUITS AND REFINE

TREATY INTERPRETATION METHODOLOGY.

A. There Is Conflict In the Federal Circuits.

There is a conflict in the courts of appeals on what

culpability will bypass the treaty's liability cap.* The conflict is

between whether to apply the tort standard of objective reckless

disregard -- which focuses on compensating victims of reckless

misconduct where the actor knew or had reason to know of the

probability of harm -- or the criminal law standard of subjective

reckless disregard, which has the purpose to punish certain acts

that are accompanied by the malicious state of mind of actual

knowledge of the probability of harm.

” This Court granted certiorari in Trans World Airlines, Inc. v. Franklin

Mint Corp., 466 U.S. 243 (1984); Air France v. Saks, 470 U.S. 392 (1985);

Chan v. Korean Air Lines, Co., Ltd., 490 U.S. 122 (1989); Eastern Airlines,

Inc. v. Floyd, 499 U.S. 530 (1991); Zicherman v. Korean Air Lines Co., Lid,

516 U.S. 217 (1996); El Al israel Airlines, Lid. v. Tseng, 525 U.S. 155

(1999).

® Article 25 expressly provides for application of forum law to define "dol,"

or its English language translation "wilful misconduct" and the legal

equivalents to “dol” and “wilful misconduct." Butler v. Aeromexico, 774

F.2d 429, 430 (1 ith Cir. 1985); Block v. Air France, 386 F.2d 323, 331 n.21

(Sth Cir. 1967), cert. denied, 392 U.S. 905 (1968). See also Tseng, 525 U.S.

at 676 (Stevens J., dissenting).

The Second and Ninth Circuits apply the tort objective

reckless disregard test. Tug Ocean Prince, Inc. v. United States,

584 F.2d 1151 (2d Cir. 1978), cert. denied, 440 U.S. 959 ( 1979);

Koirala v. Thai Airways, Int'l Ltd., 126 F.2d 1205, 1210-11 (9"

Cir. 1997). This is consistent with Executive Branch

interpretation of Article 25. S. Exec. Rpt. 105-20 at 52-53 (1998).

It is also consistent with national tort and contract law. See, e.g.,

Prosser and Keaton on Torts, § 34, 213 (5" ed. 1984); 6A Corbin

On Contracts § 1472. By contrast, the District of Columbia and

the Eleventh Circuits now apply the more onerous criminal

subjective recklessness standard, in conflict with the Second and

Ninth Circuits, their own prior case law, the Executive Branch’s

interpretation, and the text and drafting history of Article 25. See

Saba v. Air France, 78 F.3d 664, 668 (D.C. Cir. 1996) (plaintiff

must prove that the defendant was subjectively aware of the

consequences of his act); Cortes v. American Airlines, Inc., 177

F.3d 1272, 1290 (11 Cir. 1999) (plaintiff must prove that the

flight crew actually knew how far off course they were).

The Saba and Cortes decisions are also irreconcilable with

this Court’s recognition that the more onerous subjective

recklessness standard has typically only applied in criminal cases

or quasi-criminal contexts in which punishment is central. See,

e.g., Farmer v. Brennan, 511 U.S. 825, 837 (1994) (American

civil law calls a person reckless who acts or fails to act in the face

of an unjustifiably high risk of harm either known or so obvious

it should be known, while the criminal law typically permits a

finding of recklessness only when a person disregards a risk of

which he is aware).?

° Farmer concemed the proper test for "deliberate indifference" under the

Eighth Amendment prohibition against cruel and unusual punishment. This

Court applied the criminal subjective standard because the domain of the

Eighth Amendment is unconstitutional punishment, not imposition of

liability for the creation of conditions that present risks of harm to society.

(continued...)

The Second Circuit applies objective recklessness for

Article 25. Pekelis v. Transcontinental & Western Air, Inc., 187

F.2d 122 (2d Cir.), cert. denied, 341 U.S. 951 (1951), defined

willful misconduct as the "intentional performance of an act with

knowledge that the performance of that act will probably result in

injury or damage, or ... in such a manner as to imply reckless

disregard of the probable consequences...." Jd. at 124. Pekelis

held that a request to charge could not fail to state that the

"employee must either have known that the test was necessary for

safety, or his duty to make it must have been so obvious that in

failing to make it his conduct would be reckless, rather than

merely negligent." Jd. at 125 (emphasis added). This is

unmistakably an objective test. Pekelis also relied on the 1929

Warsaw Minutes, in particular the definition of willful misconduct

given by British delegate Sir Alfred Dennis, who defined it as

including deliberate acts and "‘acts of carelessness without regard

of the consequences." Jd. at 124 n.2 (citing Warsaw Minutes).!°

See also Grey v. American Airlines, Inc., 227 F.2d 282, 285 (2d

” (...continued)

That is the concern of the civil law "when it imposes tort liability on a

purely objective basis." Jd. at 837-38.

10 It has been recognized that the English translation of the French word

"dol" as “wilful misconduct" is an appropriate translation consistent with the

intent of the treaty's drafters. See American Airlines, Inc. v. Ulen, 186 F.2d

529, 533 (D.C. Cir. 1949). According to French law, "dol," also known as

"faute dolosive" requires either an intent to harm or an act done with

knowledge that harm will result. Jourdain, P., Droit a Réparation,

Responsabilité Civile, Fasc. 120-2 (1995). The majority view is that it

requires subjective ("in concreto") knowledge. The "faute lourde" which is

considered the legal equivalent of, and is thus assimilated to, "dol" under the

Roman law maxim "culpa lata dolo aequiparatur" ("grave fault is the

equivalent of intentional harm") refers to negligence of an extreme gravity

in which the defendant knew or should have known of the risk of damage.

Id. The defendant's knowledge in "faute lourde" is assessed objectively ("in

abstracto"). Jd.

Cir. 1955), cert. denied, 350 U.S. 989 (1956) (affirming Pekelis).

In 1965, the decision Berner v. British Comm. Pacific

Airlines, Ltd., 346 F.2d 532, 537 (2d Cir. 1965), cert. denied, 382

U.S. 983 (1966), noted that willful misconduct required some

"realization" of probability of harm, adding, however, that "[w]e

do not mean to suggest that ‘wilfu! misconduct' is an entirely

subjective matter, see Prosser, Torts 189 (3d ed. 1964)..." Id. at

538 n.4.

Berner’s reference to Prosser is key. It acknowledges that

American law treats willful, wanton and reckless acts that are in

disregard of obvious risks, as assessed by the objective prudent

person standard, as equivalent in legal outcome to intentional acts.

See Prosser and Keaton On Torts, §34 at 213 (5th ed. 1984).!!

This objective standard for willful and wanton torts has been

applied in the tort law of bailments, guest-host statutes, the rule

that contributory negligence or assumption of the risk does not bar

recovery when the defendant acted wilfully, wantonly or

recklessly, and in common carrier cases that void exculpatory or

limited liability clauses for willful, wanton and reckless acts. Jd.

at §§34 and 68.”

'l Prosser and Keaton recognize that the common law's treatment of such

aggravated fault as "quasi-intent torts," equivalent in legal outcome to

intentional torts, owes its origin to the Roman law. Jd. at §34, pp. 209-210,

n.15, and p. 212 n.50, citing Elliot, "Degrees of Negligence," 6

So.Cal.L.Rev. 81, 143 (1932). Elliot discusses the Roman law concepts of

“dolus" (intentional wrongs or fraud) and "culpa lata" (grave fault) and the

Roman maxim "culpa lata dolo aequiparatur." Elliot states that this maxim

allowed the civil law, and later American common law, to lose concern with

the "index of a state of mind" of the actor, and, instead, “examine the

external facts and apply objective tests." Jd. at 99-100; see also id. at 116-

148 (discussion of American case law).

'2 The American common carrier cases are especially noteworthy because,

(continued...)

The. Second Circuit explicitly affirmed the Article 25

objective recklessness standard in Tug Ocean Prince, Inc. v.

United States, 584 F.2d 1151 (2d Cir. 1978), cert. denied, 440

U.S. 959 (1979). There, relying on Pekelis and Berner, the court

said:

The knowledge required for a finding of willful

misconduct is that there must be either actual knowledge

that the act, or the failure to act, is necessary in order to

avoid the danger, or if there is no actual knowledge, then

the probability of harm must be so great that failure to

take the required action constitutes recklessness.

Id. at 1163 (citations omitted)."

12 (continued)

like Article 25, they vitiate contractual liability caps when the conduct is

willful, wanton or reckless, thus following the Roman law maxim "culpa

lata dolo aequiparatur." See Fremont Homes, Inc. v. Elmer, 974 P.2d 952,

956 (Wy. 1999) (contractual limitation of remedies are void for wilful and

wanton misconduct, defined as harm caused intentionally or recklessly);

Kalisch-Jarcho, Inc. v. City of New York, 448 N.E.2d 413, 417 (N.Y. 1983)

(contractual liability is void in the event of explicit intentional wrongdoing

or implicit reckless indifference); Plant v. Thompson, 221 S.W.2d 834 (Mo.

1949) (assumption of risk defense void where railroad committed wilful or

wanton misconduct, defined under the Restatement (Second) Torts, §500, as

acts of reckless disregard done "knowing or having reason to know of facts"

that create risk of harm); see also Williston On Contracts (3d ed.) §1750A

(contract cannot exempt liability for future intentional torts, wilful acts or

gross negligence); 6A Corbin On Contracts §1472 (contracts cannot limit

tort liability for harm inflicted wilfully or wantonly).

13 The Second Circuit's objective standard is in agreement with Prosser and

Keaton, §34 at 213, and other prevailing national tort law. See Restatement

(Second) Torts, §500 (acting in reckless disregard means an act or omission

done "knowing or having reason to know" of unreasonable risk of harm);

see also id. at §282 cmts. e and h (negligence excludes reckless conduct,

(continued...)

i a ld

Objective recklessness has also been applied in the Ninth

Circuit. Recently, the Ninth Circuit upheld a jury finding of

willful misconduct, and rejected the airline's argument that if the

crew was subjectively confused about their "actual position" there

could be no willful misconduct. Koirala v. Thai Airways, Int'l,

Ltd., 126 F.2d 1205, 1210-11 (9th Cir. 1997). The court held that

willful misconduct must be determined "‘by reference to the data

of practical human experience.’" Jd. at 1210 (cite omitted).

In 1949, prior to Saba, 78 F.3D 664, the District of

Columbia Circuit expressly rejected the argument that there must

be "well-nigh criminal intent before Article 25(1) had

application." Ulen, 186 F.2d at 533. The court defined willful

misconduct as 1) performance of an act done with knowledge that

the act would likely result in harm, 2) or an act performed with

"reckless and wanton disregard of its probable consequences, or

3) a "deliberate purpose not to discharge some duty necessary to

safety." Id.

Ulen's first alternative embodies subjective knowledge of

the probable harm (regardless of motive), and alternative three

embodies subjective intent to do the wrongful act. These would

correspond to the civil law definition of "dol" as intentional

wrongs. See n. 10 ante. Alternative two, the common law's

"equivalent" to "dol" stands in contradistinction to alternatives one

13 (...continued)

where the actor realizes or should realize danger; such conduct involves

culpability which approaches and finally becomes indistinguishable from

that which is shown in intended misconduct, and the two conducts are given

the same legal effect).

See also Holmes, Collected Legal Papers 190 (1920) (the intent in

wilful and wanton misconduct is not the intent to cause injury, but to do or

not do an act in reckless disregard of the consequences, and under such

circumstances that a reasonable man would know or have reason to know

of the high probability of harm to another).

and three in that it permits a finding of willful misconduct based

on objectively observable recklessness. This is confirmed by

Ulen's rejection of a "well-nigh criminal intent" and by the

principle of nonredundancy. If alternative two also required

subjective knowledge of probability of harm, it would be no

different from alternative one.

In KLM Royal Dutch Airlines of Holland v. Tuller, 292

F.2d 775 (D.C. Cir.), cert. denied, 368 U.S. 921 (1961), the court

again examined the Warsaw Minutes, agreeing with Sir Alfred

Dennis that the best common law translation of "dol," consistent

with the shared expectation of the treaty's drafters, is "wilful

misconduct," which includes acts accomplished “with

deliberation” and also "‘acts of carelessness without regard of the

consequences." Jd. at 779 and n.2, citing Warsaw Minutes. The

court affirmed that willful misconduct included acting"in some

manner as to imply reckless disregard of the consequences of its

performance." Jd. at 778. The 1996 Saba decision is in conflict

with this prior caselaw. Saba, 78 F.3d at 668.

The Eleventh Circuit initially adopted the objective

reckless disregard test of Tuller. Butler v. Aeromexico, 774 F.2d

429, 430 (11th Cir. 1985). In affirming the jury's verdict of

willful misconduct, Butler expressly relied on an “objective

analysis" of the evidence "rather than on subjective evaluation of

the credibility of the crew." Jd. at 431. The Cortes decision is in

direct conflict with Butler, as well as Second and Ninth Circuit

law. It is also in direct conflict with the Executive Branch’s

interpretation of Article 25.

B. Under the Circumstances, the Eleventh Circuit Should

Hiave Given Controlling Weight to the Executive

Branch's Opinion that Article 25 Incorporates

Obbjective Recklessness.

Tthe Departments of State and Transportation interpret

Article 2:5 as incorporating an objective reckless disregard

standard. See S. Exec. Rpt. 105-20 at 52-53 (1998). The

Executive: Branch offered its interpretation of Article 25 in

response ito. questions from the Senate Committee on Foreign

Relations during ratification of MP4 in 1998.

Article 25 of MP4 was lifted from Article 25 of the 1955

Hague Protocol. The United States did not ratify the Hague

Protocol. The amended Article 25 in both MP4 and the Hague

Protocol etliminated the reference to forum law and replaced the

formula "dol" and the "faute" which is its equivalent with a

descriptiom of the conduct that would bypass the liability caps.

The substittuted language renders Article 22 void when the airline

acts “with intent to cause damage or recklessly and with

knowledge= that damage would probably result." The Senate asked

the Departtments of State and Transportation what domestic

impact MP?4 Article 25 would have when compared to the original

Article 25.. S. Exec. Rpt. 105-20 at 52.

Thee Executive agencies unequivocally opined that MP4

Article 25 would have no impact domestically, because the

amended “Article 25 incorporated the pre-existing American

judicial deffinition of "wilful misconduct as reckless disregard,"

which coulcd be assessed objectively. Jd. at 52-53. The Executive

agencies weould not, however, agree to attach a resolution to the

ratification of MP4 stating that "no change is intended." S. Exec.

Rpt. 105-20 at 48."

was:

The State Department's response to the Senate's question

U.S. courts have defined willful misconduct as:

... the intentional performance of an act with knowledge

that the performance of that act will probably result in

injury or damage, or it may be the intentional performance

of an act in such a manner as to imply reckless disregard

for the probable consequences of the performance of the

act; or

... the intentional omission of some act, with knowledge

that such omission will probably result in damage or

injury, or the intentional omission of some act in a manner

from which could be implied reckless disregard of the

probable consequences of the omission, would also be

willful misconduct. (Pekelis v. Transcontinental &

Western Airlines, Inc., 187 F.2d 122 (2d Cir), cert. denied

[341] U.S. 951 (1951)).

It similarly has been defined as "a conscious intent to do

or omit doing an act from which harm results to another,

or an intentional omission of a manifest duty. There must

be a realization of the probability of injury from the

conduct, and a disregard of the probable consequences of

such conduct." (Grey v. American Airlines, Inc., 227 F.2d

282 (2d Cir. 1955)[cert. denied, 350 U.S. 989 (1956)]).

The restatement of Laws, Second, Torts Sec. 500

'4 ‘In rejecting the suggestion to attach a resolution that "no change is

intended" the State Department obviously had in mind that such a resolution

would then have to be treated as an amendment to MP4 that would have to

be consented to by the other signatory parties. See New York Indians v.

United States, 170 U.S. 1, 22-23 (1898). The Executive Branch was also

acknowledging that MP4 Article 25 could have a substantive impact in some

foreign states, although it would have no impact domestically.

defines "Reckless disregard of safety," which standard is

incorporated into the amended Article 25, as follows:

The actor’s conduct is in reckless disregard of the safety

of another if he does an act or intentionally fails to do an

act which it is his duty to the other to do knowing or

having reason to know of facts which would lead a

reasonable man to realize, not only that his conduct

creates an unreasonable risk of physical harm to another,

bui also that such risk is substantially greater than that

which is necessary to make his conduct negligent.

In light of the understanding that the change to Article

25 was intended merely to replace the term "wilful

misconduct" with its common law definition, and in light

of the above-quoted definitions, it is our view that the

amendment to Article 25 will have no practical effect on

the rights of claimants in cases under the Warsaw

Convention.

S. Exec. Rpt. No. 105-20 at 52-53 (emphasis added).

Because the Eleventh Circuit in Cortes had misread the

Second Circuit case law cited by the Executive agencies and

construed it to require subjective knowledge, when in fact Berner,

346 F.2d at 537, 538 n.4 and Tug Ocean Prince, 584 F.2d at 1163,

had rejected that standard, the court below could not understand

why the Executive Branch had also incorporated §500 of the

Restatement (Second) Torts, which unmistakably adopts objective

recklessness. The Court of Appeals' solution to this enigma was

to accept the State Department's conclusion that amended Article

25 was not a change domestically, but reject the State

Department's premise for that conclusion -- that MP4 Article 25

incorporated the objective recklessness standard. The Eleventh

Circuit decision is in direct conflict with the Executive Branch’s

interpretation of Article 25.

In the context in which the Executive Branch

interpretation was given, the court below should have given it

conclusive weight. This Court applies two standards to determine

the weight to be accorded Executive Branch constructions of

treaty terms. The normal rule is to accord great weight, though

not controlling weight, to such constructions in deference to the

constitutional role of the Executive in negotiating, making and

enforcing treaties. Societe Nationale Industrielle Aerospatiale v.

U.S. Dist. Court for Southern Dist. of Iowa, 482 U.S. 522, 535

n.19 (1987); O'Connor v. United States, 479 U.S. 27, 31, 33

(1986); Sumitomo Shoji American, Inc. v. Avagliano, 457 U.S.

176, 184 (1982). In certain contexts, however, the Executive's

construction of a treaty will be accordednearly conclusive weight

and will be over-ridden only when "extraordinarily strong

contrary evidence" exists. Sumitomo , 457 U.S. at 184; see also

O'Connor, 479 U.S. at 33. This heightened standard applies when

the Executive Branch construes a treaty that has long been in

existence and when the construction is in agreement with a

reasonable interpretation of the treaty text and its drafting history,

as well as the weight of foreign precedents. O'Connor, 479 U.S.

at 33; Sumitomo, 457 U.S. at 184. That is the case here. There

was no “extraordinarily strong contrary evidence" to warrant

disregarding the Executive Branch's incorporation of an objective

test.

C, The Interpretations of the Executive Branch and the

Second and Ninth Circuits Are Consistent with the

Treaty Text and Its Drafting History. The Eleventh

Circuit Did Not Heed the Treaty Text and Is in

Conflict With the Drafting History."

Article 25 directs courts to apply forum law to determine

what "faute" (fault) of the carrier is considered the legal

equivalent of "dol" for purposes of bypassing the liability cap.

This key word "faute" has been mistranslated into the American

version of the Warsaw Convention as "default." "Faute" is better

defined as: "Fault. Fault is a breach of a pre-existing obligation

for which the law orders the reparation.... The question as to

whether the actor has committed a fault, with or without the

intention to harm, is a matter [of] indifference." Dahl's Law

Dictionary, French-English, 194 (definition of "Faute") (Paris

1995). Article 25 is concerned, then, with what fault or breach of

obligation is treated under forum law as incurring the same legal

effect as "dol" (intentional wrong). It is not concerned with what

'S The rules of treaty construction relevant here are as follows: A court

must start with the text of the treaty, allowing the clear import of the

language to control. Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 533, 540

(1991). Second, courts are to construe treaties liberally. Bacardi Corp. v.

Domenech, 311 U.S. 150, 163 (1940). When the treaty text is ambiguous

or difficult to interpret, courts may examine the post-ratification conduct of

the parties, including the weight of precedent in foreign courts. Air France

v. Saks, 470 U.S. 392, 400 (1985). Ambiguous text also requires

examination of the negotiating history. Jd. This Court has also permitted

examination of the drafting history of subsequent treaty protocols to

determine whether that history sheds light on the meaning of the unamended

text. Floyd, 499 U.S. at 548-50. This Court has warned, however, of the

less reliable nature of subsequent legislative history, which cannot, in any

event, be used to override "a reasonable interpretation of a statute that can

be gleaned from its language and legislative history prior to its enactment."

Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 118

n.13 (1980).

mental state ("intention") is considered the equivalent of "dol."

Because Article 25 is a contractual provision giving to

victims the right of full compensation in the event of certain

"fault" or breach of obligation by the carrier, it is obvious that the

appropriate categories of domestic law that courts must look to are

tort and contract law. Neither Article 25, nor any other Article of

the treaty, implicitly or explicitly, invokes penal law

considerations.

The Court of Appeals failed to heed the text of Article 25

and never considered the normally applicable national tort and

contract law. The court also failed to consider the treaty as a

whole. The treaty was carefully drafted to balance competing

interests: it protected the infant aviation industry, but not at the

expense of violating public policy by protecting gross misconduct.

See Warsaw Minutes at 58-59.'° Thus, while a carrier's liability

to the passenger is presumed under Article 17, it is sharply limited

under Article 22, and the carrier can be fully exonerated if it

proves its nonnegligence under Article 20. Article 17 favors

plaintiffs, while Articles 20 and 22 counterbalance that and favor

the carrier. For reasons of public policy, Article 25 also balances

Article 22 and guarantees full compensation in cases of "dol" and

its legal equivalents, as determined by forum law. The Court of

Appeals failed to follow the natural reading of Article 25,

requiring courts to apply the forum law that would otherwise

apply to determine legal equivalents to intentional torts. See

Zicherman v. Korean Airlines Co., Ltd., 516 U.S. 217, 224, 231

'© (The German delegate stated that the Convention could not deviate from

the principle of law that while limited liability may exist for negligence, "in

the case of ‘faute lourde,' the carrier incurs the same liability as in the case

of dol). See also Hague Minutes, ICAO Doc. 7686-LC/140, Vol. I, at 171

(Intervention of Swiss Delegate: any amendment to Article 25 that bypasses

the liability cap only in cases of intentional torts and does not also include

acts of gross negligence would be contrary to public policy.)

(1996) (Articles 17 and 24 are pass-throughs to domestic damages

law that would otherwise apply). By contrast, the Second and

Ninth Circuits and the Executive Branch did follow the text of

Article 25 and incorporated the national tort law objective

reckless disregard test.

The decision below and the Saba decision are also in.

direct conflict with the drafting history of Article 25. That history

fails to contain even a suggestion that subjective recklessness is

required to be applied, although it does demonstrate that the

forum's legal equivalent to "dol" must minimally consist of very

gross negligence.

The drafting history reveals that the discussions about

Article 25 concerned: 1) whether to substitute "dol" for the less

meaningful phrase "intentional illicit action"; 2) whether to find

a formula that could incorporate the Roman law maxim "culpa

lata dolo aequiparatur" (see note 10 ante), so that "faute lourde"

(gross negligence) could be assimilated to "dol"; and 3) how to

accomplish this in a formula that would not require use of civil

law terminology. Warsaw Minutes at 59-62, 213-215.

The drafters resolved to find a formula that would allow

each country to assimilate "faute lourde" into "dol," in accordance

with national public policy, without, however, using the term

"faute lourde," so that countries unfamiliar with that term could be

spared its difficult translation. See Warsaw Minutes at 58-59

(Intervention of German delegate: the Convention cannot deviate

from principle that in the case of "faute lourde" the carrier must

incur the same liability as in the case of "dol"); 59-60

(Intervention of British delegate: requesting "an expression" that

his country could translate, and favoring "wilful misconduct"

because "it covers all that which you mean; it covers not only

deliberate acts but also careless acts done without regard for the

consequences"); 60 (Intervention of Italian delegate: because the

English notion corresponds almost entirely to "dol" and to "faute

lourde," the delegates "Were in agreement"); 61 (Intervention of

French delegate: acknowledging that in France "faute lourde" is

included in dol, but fearing that inclusion of that term in the treaty

would lead courts unfamiliar with the term to find such fault in all

cases); 61 (Intervention of Brazilian delegate acknowledging that

the English idea eliminates subjectivity and a "compromise

formula is more than necessary because it's a question of cases

which will be judged by local courts" and in some courts, like

those of Brazil, intentionality of the act is required); 62

(Intervention of Swiss delegate: obtaining the delegates’ approval

to refer the matter to the drafting committee to "include ‘faute

lourde’ in ‘intentional act and "find a formula which is

satisfactory to the various judicial languages represented here

(approval)").

At the Fourth Session, the Drafting Committee President,

Mr. Giannini from Italy, was able to report success in arriving at

just such a formula: "we succeeded in finding this formula, which

has also satisfied our friends from Great Britain, by which we

have succeeded in adopting the expression ‘faute lourde et de dol,"

an expression which is difficult to translate into English."

Warsaw Minutes at 211. Sir Alfred Dennis then "noted in the

minutes that it [the formula] results from the explanations which

were exchanged that we have the expression willful misconduct

to translate these words into English, which is very well known

and which is very well defined in our law." Jd. at 213. According

to Sir Alfred Dennis, willful misconduct included deliberate acts

and careless acts, and as the Brazilian delegate noted, the latter

was an elimination of subjectivity. Jd. at 61.

The Court of Appeals erred in dismissing Sir Alfred

Dennis' comments. It acknowledged that his comments supported

the construction that the liability cap could be bypassed "without

establishing that the carrier knew its actions placed its passengers

at risk." App. A, at 26a-27a. But, the court disregarded this

statement because "the language adopted by the conference does

not expressly embody this characterization." Jd

This reading of the Warsaw Minutes puts the cart before

the horse. The text of Article 25 expressly allows national law to

determine the equivalent faults to "dol," and the comments of Sir

Alfred Dennis explain what that national law is in the common

law. Moreover, even assuming, arguendo, that the text of Article

25 and the drafting minutes are susceptible to more than one

reasonable interpretation on this issue, the Court of Appeals was

obliged to apply this Court's rule of treaty construction favoring

the reasonable construction which enlarges private rights under a

treaty provision. Bacardi Corp., 311 U.S. at 163. Instead, the

Court of Appeals erroneously favored the construction which

restricted passenger rights under Article 25, a provision added to

protect passengers in accordance with public policy and well-

established principles of tort and contract law. By contrast, the

opinion of the Executive Branch is consistent with the treaty text

and history.

D. The Decision below Conflicts with the Weight of

Foreign Precedent. The Interpretations of the

Executive Branch and the Second and Ninth Circuits

Are Consistent With the Weight of Foreign Precedent.

The.. Court of Appeals misapprehended the post-

ratification conduct of other signatories. A decision by the Swiss

Supreme Court construing the Hague Protocol and the Warsaw

Convention especially highlights that misapprehension. See

Judgment of November 14, 1967, JT 1968 I 526 (Swiss Sup. Ct.).

This case involved international transportation between Argentina

and Switzerland. Even though Switzerland had ratified the Hague

Protocol, the court applied the unamended treaty, because

Argentina had only ratified the Warsaw Convention. The Swiss

court noted that Article 25 of the Hague Protocol was more

stringent than the original Article 25, and did not find that the new

Article 25 was a clarification of original intent. Instead, the court

continued to apply the original. Article 25 and treated "faute

grave" (serious fault) as the equivalent of "dol" in accordance with

Swiss law. The court defined "faute grave" as very serious

negligence involving omissions of elementary duties that should

have imposed themselves on every reasonable person in the same

situation. Id. at 533."

French courts construing the original Article 25 ruled that

under French law "“faute lourde" (gross negligence) was the

domestic equivalent of "dol." See, Judgment of April 24, 1952,

Broche-Hennessy v. Air France, 6 R.F.D.A. 199 (1952) (Trib.

Civil Seine), aff'd, Judgment of February 25, 1954, 8 R.F.D.A. 45

(1954) (App. Ct. Paris). The subjective test ("culpa in concreto")

was not required, as the fault was not the same as a penal

violation. Instead, the French court applied an objective test ("in

abstracto"). Jd. at 223. In limiting "faute lourde" to its most

serious end of inexcusable recklessness, carelessness, blindness,

conscious temerity or stupidity, the Broche-Hennessy court relied

on the American notion of willful misconduct, citing American

Airlines, Inc. v. Ulen, 186 F.2d 529 (D.C. Cir. 1949). Id., 6

R.F.D.A. at 223.

Even after France ratified the Hague Protocol, the standard

used to assess "recklessly and with knowledge" has been the

objective, reasonable person standard. See, e.g., Judgment of

April 16, 1975, Ciolkowski v. Air France, 1976 R.F.D.A. 105, 107

(Sup. Ct. France).

17 In the Judgment of July 11, 1972, JT 1974 I 80 (Swiss Sup. Ct.), the

same court, in a case now applying amended Article 25, ruled that amended

Article 25 required a much stricter fault of subjective recklessness.

Switzerland treats amended Article 25 as a substantive amendment that

applies prospectively and does not clarify the original intent of Article 25.

Teli cememmeeeeeiieisaiiatiiemialasaiauauiaaiiaiiiaiilll

Greek courts follow French courts in applying the

objective standard even under amended Article 25 of the Hague

Protocol. See A. Yokaris, "La Jurisprudence de tribunaux grecs

sur la Convention de Varsovie," 1977 R.F.D.A. 125, 142 (1977)

("interprétation in abstracto ae \'élément psychologique...et non

pas in concreto"). German courts have also applied an objective

test. Judgment of May 10, 1974, 1974 E.T.L. 630 (Bundes-

gerichtshof).

In Belgium the courts have ruled that the Warsaw Minutes

make clear that the delegates wanted to assimilate "faute lourde"

to "dol," in accordance with the adage "culpa lata dolo

aequiparatur," and that common law countries would, in turn,

apply "wilful misconduct," which includes acts deliberately

committed and heedless acts committed without looking at the

consequences. Judgement of April 17, 1958, Collet v. Sabena, 12

R.F.D.A. 411, 414-20 (1958) (Trib. 1st Instance Brussels).

This limited review of European cases suffices to show the

following: 1) Article 25 of the Warsaw Convention permitted

gross negligence and recklessness, both assessed objectively, to be

legal equivalents to dol; 2) Article 25 of the Hague Protocol was

a substantive amendment to the Warsaw Convention; and 3) under

amended Article 25 the question whether knowledge is to be

proved subjectively or objectively appears to vary in accordance

with lex fori, but the weight of precedent favors an objective test.

This is also borne out by the Hague Protocol drafting minutes.

E. The Court of Appeals Misread the Hague Minutes and

Impermissibly Allowed That Reading of a Treaty

Protocol to Override a Reasonable Interpretation of

the Original Text and Drafting History of Article 25.

At the Hague Protocol there was debate that the phrase

"recklessly and with knowledge" was susceptible to varying

interpretations as either requiring actual knowledge or permitting

imputed knowledge. The issue was never resolved. Hague

Minutes, I.C.A.O. Doc. 7686 LC/140, Vol. I, 23rd meeting, pp.

284-5. Various delegates responded to the debate by noting that

the question of actual knowledge versus imputed knowledge was

a matter to be left to /ex fori. Id. at 285 (Interventions of delegates

from France, Israel and United States).'®

Despite this lack of resolution at the Hague concerning the

precise meaning of "recklessly and with knowledge," the Court of

Appeals erroneously concluded that the Hague delegates were in

uniform agreement that "knowledge" meant subjective

knowledge. App. A at 27a. The Court of Appeals disregarded the

debate at the 23rd meeting day that established a lack of

uniformity. The court also erred in assuming that the word

"knowledge" could only mean actual or subjective knowledge,

disregarding that it could also permit imputed knowledge.

More importantly, even if the amended Article 25 does

require subjective knowledge of probability of harm, as the

Supreme Court of Switzerland believes, that is a substantive

change to the Warsaw Convention and cannot apply retroactively.

Landgraf v. U.S.I. Film Products, 511 U.S. 244, 268 (1994);

Rivers v. Roadway Express, Inc., 511 U.S. 298, 310 (1994) (there

is no presumption of retroactivity of even a "restorative"

18 The Court of Appeals correctly noted that during the 17th and 18th

meeting days at Hague suggestions were made to replace "recklessly and not

caring" with "recklessly and with knowledge." While many delegates

favored substituting the word "knowledge," they did not agree on what that

word meant in terms of proof. The proof issue was not addressed again until

the 23rd meeting day. Hague Minutes at 282-285. The issue was left

unresolved. See also Lowenfeld and Mendelsohn, "The United States and

the Warsaw Convention," 80 Harvard L. Rev. 497, 505-06 (1967) (Hague

Minutes do not explain what the text "recklessly and with knowledge" was

intended to mean).

amendment that purports to correct judicial error to restore a

statute's original intent). Application of Landgrafand Rivers is all

the more imperative in interpreting an amendment to Article 25 of

the Warsaw Convention, because there is no dispute that the plain

language of unamended Article 25 allows application of forum

law to define the equivalents of dol, whereas amended Article 25

apparently preempts local law on the substantive conduct that

suffices to break the liability cap.

The Eleventh Circuit’s misinterpretation of the Hague

Protocol as clarifying the intent of the original Article 25 also

raises the statutory construction concern expressed in G7TE

Sylvania, 447 U.S. at 118 n.13, that even when it would otherwise

be useful, "subsequent legislative history will rarely override a

reasonable interpretation of a statute that can be gleaned from its

language and legislative history prior to its enactment." Whatever

may be the most reasonable interpretation of amended Article 25,

it is clear that under the original text of Article 25 and its drafting

history, objective recklessness suffices to bypass the liability cap.

In sum, there is a conflict in the federal circuits

concerning the proper interpretation of Article 25. The Eleventh

and District of Columbia Circuits apply a criminal subjective

recklessness standard, while the Second and Ninth Circuits apply

the tort objective recklessness standard. The decision below is in

direct conflict with the State Department's construction of Article

25 and with the weight of foreign precedents. This case raises

important issues of treaty construction. One is the proper weight

to be accorded Executive Branch constructions of treaties.

Another is whether judicial interpretation of the drafting history

of a subsequent treaty protocol can ever override a reasonable

interpretation that can be gleaned from the original treaty text and

its own drafting history. There is also a need to correct a clearly

erroneous and unjust decision that impacts important private

rights.

CONCLUSION

The petition for a writ of certiorari should be granted.

Dated: November 15, 1999

Respectfully submitted,

Plaintiffs’ Committee Counsel

Marc S. Moller

Counsel of Record

Kreindler & Kreindler

100 Park Avenue

New York, NY 10017

(212) 687-8181

Aaron S. Podhurst

Chairman of the Plaintiffs’

Committee

Podhurst Orseck Josefsberg

Eaton Meadow Olin &

Perwin

25 West Flagler Street

Miami, Florida 33130

On the Petition:

Blanca I. Rodriguez

Kreindler & Kreindler

Robert L. Parks

Haggard, Parks & Stone

330 Alhambra Circle

Coral Gables, Florida 33134

-and-

Joel Perwin

Timothy Cook

Kevin Malone

Carlos Velasquez

Ira Leesfield

Stuart Grossman

Jorge Ortiz Brunet

APPENDIX

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 98-4739

Filed June 15, 1999

D. C. Docket No. 96-727-CIV-SH

DORIS CRISTINA PIAMBA CorTES, Individually and as Per-

sonal Representative of the Estate of Maria Constanza

Piamba Cortes, deceased,

Plaintiff-Appellee-Cross-Appellant,

—Vversus—

AMERICAN AIRLINES, INC., a Delaware Corporation,

Defendant-Appellant-Cross-Appellee.

Appeals from the United States District Court

for the Southern District of Florida

Before

BIRCH and DUBINA, Circuit Judges,

and MORAN*, Senior District Judge.

Honorable James B. Moran, Senior U.S. District Judge for the

Northern District of Illinois, sitting by designation.

BIRCH, Circuit Judge:

In this appeal, we hold as a matter of first impression that

Article 25 of the Warsaw Convention, as clarified by Mon-

treal Protocol No. 4, requires a passenger to prove that an air

carrier subjectively knew its conduct likely would result in

harm to its passengers in order to escape the Convention’s

limitations on liability. On summary judgment, the district

court held that Article 25 measures an air carrier’s conduct

objectively and concluded as a matter of law that, under either

an objective or subjective standard, the passengers’ claims for

damages were not limited by Article 25’s liability cap. For the

reasons that follow, we conclude that the district court incor-

rectly entered summary judgment against the air carrier on

this issue and remand for a determination by the finder of fact

whether the air carrier’s conduct precludes the application of

the Convention’s liability cap to this case.

In addition, we hold that the district court: (1) properly

applied Florida compensatory damages law to this case; (2)

properly refused to apply Florida’s apportionment of liability

statute; and (3) did not abuse its discretion during the dam-

ages trial by excluding evidence relating to the facts of the

underlying plane crash and prohibiting reference to the legal

finding of willful misconduct. We therefore affirm the judg-

ment of the district court with respect to these issues.

I. BACKGROUND

A. Facts

On December 20, 1995, American Airlines Flight 965

(“Flight 965”) crashed as the plane attempted to navigate

its arrival to the Alfonso Bonilla Aragon airport in Cali,

Colombia. The crash killed 151 passengers, including Maria

Constanza Piamba Cortes, a domiciliary of Colombia who

was returning home after studying in the United States.

Appellee-Cross Appellant Doris Cristina Piamba Cortes

(“Piamba Cortes”), acting both individually and as the per-

sonal representative of her sister Maria Constanza Piamba

Cortes, filed a tort action against Appellant-Cross Appellee

American Airlines, Inc. (“American”).

The facts leading up to the crash are largely undisputed and

have been detailed comprehensively by the district court. See

In re Air Crash Near Cali, Colombia on December 20, 1995,

985 F. Supp. 1106, 1109-22 (S.D. Fla. 1997). We need not

duplicate the district court’s detailed factual recitation: for

purposes of our discussion, we set forth an abbreviated state-

ment of facts that are relevant in resolving this appeal.

Flight 965 left Miami International Airport on the afternoon

of December 20, 1995, bound for Cali. Captain Nicholas

Tafuri and First Officer Donnie Ray Williams piloted the Boe-

ing 757, which the parties agree was airworthy and in good

mechanical and structural condition. At all material times dur-

ing the flight, Williams flew the aircraft while Tafuri pri-

marily handled radio communications. The Cali airport is

located in a valley approximately forty-three miles long and

twelve miles wide. The arrival and approach paths for aircraft

landing at the airport are designed to keep planes in an “air-

way” in the center of the valley and away from the moun-

tainous terrain that surrounds the valley.

American provides special training to its pilots who fly into

Central and South America in order to acquaint them with the

unusual features of these regions. Among other things, pilots

are instructed, in no uncertain terms, not to rely on local air

traffic controllers (“ATCs”) for information about their loca-

tion or position in the sky. According to American's training

materials, Latin American ATCs will assume when providing

clearance that the pilot is on course, the plane is located

where the pilot says it is, the pilot knows where the mountains

are, and the pilot will refuse a clearance that will take the

plane into a mountain. Because these assumptions may be

incorrect, the ATCs will clear pilots to descend below mini-

mum Safe altitudes in mountainous areas.

American also instructs its pilots that they must continually

verify their exact location by every means available: if they

are unable to locate and cross-check their position or are oth-

erwise unsure of where they are, they must suspend any

descent of the airplane until their position is verified and the

safe minimum altitude is determined. Furthermore, American

teaches its pilots to insist on the complete published or

assigned flight plan for the plane’s approach to the airport

unless the pilot is sure of the plane’s location and the terrain

below. If the plane is operating on an unpublished route,

American’s training materials and FAA regulations provide

that “the pilot, when an approach clearance is received, shall

maintain the last altitude assigned until the aircraft is estab-

lished on a segment of the published route.” Jd. at 1129-30.

The flight plan assigned to Flight 965 called for the plane

to follow a specified route during its arrival and approach to

Cali. The arrival phase typically is conducted in accordance

with a specified route that consists of a series of waypoints

that define the path to the landing strip. In this case, the way-

points were marked by radio beacons known as “navaids,”

which emit radio waves that can be tuned in from the cockpit

and allow the pilot to determine the compass direction to, and

in some instances the distance to, the waypoint. The way-

points also may help a pilot establish the plane’s position in

the sky, as well as its distance to a certain point.

Based on data recovered from Flight 965’s digital flight

data recorder and the statements of Tafuri and Williams on the

plane’s cockpit voice recorder,' the parties have reconstructed

the following events that led to the crash.

Flight 965 approached Cali at night. Originally, Flight 965

was assigned a published arrival path to Cali that called for

' The summary judgment record contains two transcriptions of the

cockpit voice recorder. One version is based upon the work of an inves-

tigatory group of the National Transportation Safety Board. The second

was prepared by an expert retained by American, and contains inter-

pretations of the crew’s statements at critical points during Flight 965’s

approach that are more favorable to American. When making its factual

findings, the district court relied exclusively on the second transcription

prepared by American’s expert. We therefore will do the same.

the plane to fly over the “Tulua” waypoint, located approxi-

mately thirty-four miles northeast of the airport, proceed to

the “D21 CLO” waypoint, and then fly over the “Rozo” way-

point, which is located approximately three miles north of the

airport. From there, the arrival path called for the plane to

continue south to the “Cali” waypoint, located nine miles

south of the airport, and, after executing a 180-degree turn,

return north to the airport and land.

When Flight 965 was approximately fifty-four miles north

of the airport, the ATC stationed in Cali cleared the plane to

the Cali waypoint and instructed the pilots to descend and

maintain 15,000 feet and to “report uh, Tulua.” /d. at 1117.

Moments later, however, the Cali ATC offered the pilots the

option of landing straight onto the runway without having to

turn the plane around at the Cali waypoint. The pilots

accepted the offer, and thus accepted a published flight route

that began at the Tulua waypoint, proceeded to the Rozo way-

point, and ended at the runway.

After accepting the offer, the cockpit voice recorder sug-

gests that Williams erroneously believed the flight route

began at the Rozo waypoint instead of the Tulua waypoint.

Tafuri told Williams that the flight route began at the Tulua

waypoint, but then asked the ATC for permission to go “direct

to Rozo and then do the Rozo arrival,” a request that set in

motion a chain of events that culminated in the crash. /d. at

1118. The ATC responded by saying, “Affirmative,” but

added instructions to “take the Rozo One” approach and to

“report Tulua at twenty-one miles and five thousand feet.” Jd.

at 1119.?

The parties disagreed about what Tafuri and Williams would

have understood by the term “direct.” According to Piamba Cortes and

the passengers’ representatives, Latin American ATCs use “direct” to

mean “direct along the published route,” and that Tafuri and Williams

received training as to this fact. The district court concluded, however,

that evidence adduced by American created a question of fact whether

Tafuri and Williams understood the ATC’s use of the word “direct” to

mean “direct along the published route” or “direct to the specified way-

point.” See In re Air Crash Near Cali, 985 F. Supp. at 1117 & n.8, 1119.

After this exchange, one of the pilots sought to program the

flight management computer (“FMC”) to fly automatically to

the Rozo waypoint by typing the letter “R” into the FMC’s

keypad. A total of twelve waypoints appeared on the FMC

screen, the first of which was for the “Romeo” waypoint,

located approximately 132 miles to the northeast of the plane.

Although the pilots were required to verify that the chosen

waypoint was actually Rozo, the pilot did not verify the Rozo

waypoint and instead selected the Romeo waypoint. The FMC

immediately began to fly the plane in the direction of the

Romeo waypoint, sending the plane on a prolonged, and pro-

nounced, turn to the left, toward the east and toward the

mountains.

At the time the plane began turning, it was descending past

an altitude of 16,880 feet and was flying adjacent to, or

slightly to the southwest of, the Tulua waypoint. During the

turn east, Tafuri told Williams that he wished the plane to fly

to the Tulua waypoint, but instead of dialing the proper fre-

quency for the Tulua waypoint (117.7) into his electronic

horizon situation indicator (“EHSI”), Tafuri unwittingly

dialed 116.7, the frequency for a different waypoint located

160 miles to the east of the valley. Consequently, the course

deviation indicator (“D-bar’”’) function of his EHSI indicated

that the Tulua waypoint was located to the left of the plane.

Tafuri, however, instructed Williams to turn back toward the

right, which sent the plane in a westerly direction and back

toward the valley. At that time, the plane was south of the

Tulua waypoint, well to the east of the valley, and east of the

radials that define the flight route to the Rozo waypoint. The

plane also had continued its descent, dropping more than

5.000 feet since the “R” had been entered into the FMC.

Less than one minute later, Tafuri dialed 117.7, the correct

frequency for the Tulua waypoint, into his EHSI. Because the

plane already had passed the Tulua waypoint, this caused the

D-bar indicator to shift on the EHSI screen. Tafari instructed

Williams to fly to the Cali waypoint, although he also con-

firmed with the ATC that the flight plan called for the plane

to fly first to the Tulua waypoint and then to the Rozo way-

point. Tafuri commented to Williams that he was having dif-

ficulty locating the Tulua waypoint, so Williams suggested

that they intersect with the flight route and fly directly to the

Rozo waypoint.

At that time, the plane had descended to 10,000 feet and

was still heading west. When the plane dropped to 8,480 feet,

the plane’s ground proximity warning system sounded, direct-

ing the pilot to pull up. Williams attempted to climb, but the

plane’s ability to climb rapidly was hampered by the fact that

Tafuri and Williams failed to pull back the speed brakes,

which had been deployed several minutes earlier. Approxi-

mately thirty seconds later the plane crashed near the summit

of El Deluvio, a peak located approximately twenty-four

miles northeast of the airport and approximately ten miles

east of the airway.

B. Procedural History

After Piamba Cortes filed suit in Florida state court, Amer-

ican removed the case to federal court where it was consoli-

dated for multidistrict pretrial proceedings with almost 160

other passenger lawsuits. Piamba Cortes, through the Plain-

tiffs’ Steering Committee, filed a motion for partial summary

judgment on the issue of American’s liability. After a four-

day hearing on the motion, the district court granted the

motion.

In a 118-page order granting the plaintiffs’ motions for

summary judgment, the district court concluded that all the

passengers’ suits against American fell under the terms of the

Warsaw Convention. According to the language in effect at

the time the district court entered its order, the Convention

limited an air carrier’s liability except in cases of “willful

misconduct.” The district court concluded that Eleventh Cir-

cuit law allows a passenger to establish willful misconduct in

three ways, one of which is defined as “reckless disregard of

the consequences.” In re Crash Near Cali, 985 F. Supp. at

1127. Noting that all the passengers’ representatives pro-

ceeded under a reckless disregard theory, the district court

further concluded that reckless disregard contemplates a “rig-

orous objective inquiry” that is satisfied “by showing that the

defendant’s conduct amounted to an extreme deviation from

the standard of care under circumstances where the danger of

likely harm was plain and obvious,” even if the defendant did

not subjectively realize that its conduct placed its passengers

at significant risk of harm. /d. at 1128, 29. Upon reviewing

the evidence, the district court held that no reasonable jury

could find that Tafuri and Williams’ conduct—in particular,

the decision to continue descending at night in mountainous

terrain when the circumstances made clear that the plane had

strayed dramatically from the published arrival route—

amounted to anything less than willful misconduct. /d.

at 1138. The district court reached this conclusion by apply-

ing its objective analysis for reckless disregard, although

the court held in the alternative that, even if reckless disre-

gard contemplates a subjective test, the evidence compelled

a conclusion that Tafuri and Williams engaged in willful

misconduct.

After entering summary judgment in Piamba Cortes’ favor

on the issue of liability, the district court conducted a trial on

the issue of damages. Although Piamba Cortes’ sister was a

domiciliary of Colombia, the district court’s conflict-of-laws

analysis concluded that Florida compensatory damages law

determined the elements of compensatory damages awarded

to Piamba Cortes. In addition, the district court held that,

under the Convention, American is liable for all compen-

satory damages and thus Florida law requiring the appor-

tionment of liability did not apply. Finally, the district court

ruled that, during the damages trial, Piamba Cortes could not

introduce the factual circumstances of the crash and could not

mention the court’s finding that the conduct of Flight 965’s

pilots constituted willful misconduct.

American appeals three issues, arguing that: (1) “willful

misconduct” requires a subjective rather than an objective

test, and the evidence creates a question of fact for the jury

under this test; (2) conflict-of-laws principles warrant the

application of the compensatory damages scheme used by the

decedent’s domicile, which in this case is Colombia: and (3)

the Convention operates as a “pass-through” on the issue of

damag<s, and thus the district court should have applied

Florida’s apportionment statute. Piamba Cortes cross-appeals,

arguing that, during the trial on damages, she should have

been able to introduce the facts of the crash and inform the

jury that Flight 965’s pilots had engaged in willful miscon-

duct as a matter of law. We consider each argument in turn.

Il. WARSAW CONVENTION

American raises two distinct arguments related to the War-

saw Convention. First, American argues that the district court

erroneously construed “willful misconduct” under the Con-

vention to create an objective rather than a subjective test.

Second, American argues that, if the subjective test is applied,

a question of fact exists whether the conduct of Flight 965’s

pilots constitutes willful misconduct, and therefore the entry

of summary judgment on the issue of liability was inappro-

priate.

The first issue requires us to determine whether the district

court properly construed the terms of a treaty, which is a

question of law that we review de novo See Yapp v. Reno, 26

F.3d 1562, 1565 (11th Cir. 1994),

A. Background of the Warsaw Convention

The Warsaw Convention is the commonly used name for

the Convention for the Unification of Certain Rules Relating

to International Transportation by Air, T.S. No. 876,

137 L.N.T.S. 11, reprinted in note following 49 U.S.C.App.

§ 1502 (1988) (hereinafter “Warsaw Coavention”), which

entered into force for the United States on October 29, 1934.

See Butier v. Aeromexico, 774 F.2d 429, 430 n.1 (11th Cir.

1985). The Convention is the product of two international

10a

conferences, the first held in Paris in 1925 and the second in

Warsaw in 1929. See generally Floyd v. Eastern Airlines, Inc.,

872 F.2d 1462, 1467-69 (11th Cir. 1989) (providing overview

of the history, policies, and goals of the Warsaw Convention),

rev'd on other grounds, 499 U.S. 530, 111 S. Ct. 1489, 113

L.Ed.2d 569 (1991). The Convention applies to “all interna-

tional transportation of persons, baggage, or goods performed

by aircraft for hire.” Warsaw Convention art. 1(1).

Under Article 17 of the Convention, air carriers are “liable

for damage sustained in the event of the death or wounding of

a passenger. . - if the accident which caused the damage so

sustained took place on board the aircraft or in the course of

any of the operations of embarking or disembarking.” Warsaw

Convention art. 17. The Convention thus “established a pre-

sumption that air carriers are liable for damage sustained by

passengers as a result of the carrier’s negligent conduct.”

Floyd, 872 F.2d at 1467. In exchange for this presumption of

liability, the drafters included a limitation on the amount of

damages a passenger could recover from the carrier: 125,000

gold francs, or approximately $8,300. See Warsaw Conven-

tion art. 22; see also Floyd, 872 F.2d at 1467.

As a companion provision to the liability cap contained in

Article 22, the drafters adopted a safety valve by which pas-

sengers could escape the liability cap if they established that

the air carrier’s conduct that caused their injuries constituted

“wilful misconduct.”* Warsaw Convention art. 25(1). Specif-

ically, Article 25(1) provided that:

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 miscon-

duct 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 the equivalent to wilful misconduct.

2 This term is more commonly spelled today as “willful miscon-

duct.” We use the modem spelling in this opinion except for direct

quotations.

ee hs ere ee

lla

/d. Consequently, in order to obtain any compensatory dam-

ages over $$8,300 under the original version of the Conven-

tion, a passeenger had to establish that his or her damages were

the result of the air carrier’s willful misconduct.

The $8,3(00 liability cap created by Article 22 proved to be

a source of great dissatisfaction. particularly in the United

States. See iFloyd, 872 F.2d at 1463-69. In 1955, a conference

similar to the 1929 conference in Warsaw convened at the

Hague, duriing which delegates drafted what is known as

the Hague Protocol. See Protocol to Amend the Convention

for the Unifiication of Certain Rules Relating to International

Carriage by Air Signed at Warsaw on i2 October 1929 (here-

inafter “Haggue Protocol”), reprinted in Lawrence B. Gold-

hirsch, The Warsaw Convention Annotated 265-74 (1988)

(hereinafter “Goldhirsch”). The Hague Protocol proposed to

double the liiability limit contained in Article 22 to 250,000

gold francs, or approximately $16,600. See Hague Protocol

art. XI, repriinted in Goldhirsch at 268: see also Floyd, 872

F.2d at 14683. In addition, delegates proposed deleting the

term “willfull misconduct” from Article 25 and replacing it

with languagee that would allow a passenger to escape Article

22's liability «cap only if “it is proved that the damage resulted

from an act on omission. . . done with intent to Cause dam-

age or recklesssly and with knowledge that damage would

probably resullt.” Hague Protocol art. XIII, reprinted in Gold-

hirsch at 269. The Senate, however, refused to ratify, and the

President did not adhere to, the Hague Protocol.

The rejectioon of the Hague Protocol by the United States

prompted the «execution of the Montreal Agreement of 1966,

in which air caarriers agreed to enter into private contractual

agreements wiith all passengers (created by the purchase of a

ticket) to raisee the liability limit to $75,000 for all interna-

tional flights originating, terminating, or having a connecting

point in the Umited States.? Agreement CAB 18900, approved

Article 2°2(1) of the Warsaw Convention provides that “by spe-

cial contract, the ccarrier and the Passenger may agree to a higher limit of

liability.” Warsaw Convention Art. 22(1). Pursuant to the Montreal

12a

by Civil Aeronautics Board Order No. E-28680, May 13,

1966, 31 Fed. Reg. 7302 (1966).

The execution of the Montreal Agreement set the stage for

a concerted effort to update the terms of the Convention to

reflect modem legal and technological standards. At another

conference in Guatemala City in 1971, delegates proposed

raising the liability cap to approximately $136,000. See Pro-

tocol to Amend the Convention for the Unification of Certain

Rules Relating to International Carriage by Air Signed at

Warsaw on 12 October 1929 as Amended by the Protocol

Done at the Hague on 28 September 1955 (“the Guatemala

City Protocol”), reprinted in Goldhirsch at 319-29. In 1975,

delegates met once again in Montreal, Canada, and adopted a

series of four protocols, known collectively as the Montreal

Protocols. See Goldhirsch at 331-62 (reprinting the four Mon-

treal Protocols). During the twenty years following the 1975

Montreal conference, the United States declined to ratify

either the Guatemala City Protocol or the Montreal Protocols.

On September 28, 1998, the Senate ratified the fourti: of the

Montreal Protocols (“Montreal Protocol No. 4”) indepen-

dently of the Guatemala City Protocol and the three other

Montreal Protocols, and the President signed the instrument

of ratification on November 5, 1998. See El Al Israel Airlines,

Ltd. v. Tsui Yuan Tseng, — U.S. —, —, 119 S. Ct. 662, 674 &

n.14 (1999). Montreal Protocol No. 4 replaces the term “will-

ful misconduct” in Article 25 with the same language as con-

tained in the Hague Protocol:

[t]he limits of liability specified in. . . Article 22 shall

not apply if it is proved that the damage resulted from an

act or omission of the carrier, his servants or agents,

done with intent to cause damage or recklessly and with

knowledge that damage would probably result.

Agreement, the air carriers amended their contracts of carriage, appli-

cable to the United States, by filing tariffs raising the limit of liability for

passenger injury and death to $75,000. See 14 C.F.R. § 203.4 (1998).

13a

Additional Protocol No. 4 to Amend the Convention for the

Unification of Certain Rules Relating to International Car-

riage by Air Signed at Warsaw on 12 October 1929 as

Amended by the Protocol Done at the Hague on 28 September

1955 (“Montreal Protocol No. 4”) art. IX, reprinted in Gold-

hirsch at 358.4

B. Application of Montreal Protocol No. 4 to This Case

During the district court proceedings, Piamba Cortes’ abil-

ity to recover more than $75,000 hinged upon establishing

that the pilots of Flight 965 engaged in willful misconduct

under Article 25, thus allowing Piamba Cortes to avoid the

limitations on liability contained in Article 22. While this

case was on appeal, however, the United States’ adherence

to Montreal Protocol No. 4 changed the language used in

In 1994, the International Air Transport Association (“IATA”)

launched an initiative for its member airlines to waive, by private con-

tractual agreement, the liability cap contained in Article 22 of the Con-

vention. See Thomas J. Whalen, Update on the IATA Intercarrier

Agreement, 13 Air & Space Law. 1, 18 (1998). The IATA drafted what is

known as the IATA Intercarrier Agreement on Passenger Liability, which

imposes strict liability upon carriers for damages of up to approximately

$130,000, but allows a carrier to exculpate itself from liability over this

amount if it proves that “[the carrier and its agents] have taken all nec-

essary measures to avoid the damage or that it was impossible for [the

carrier and its agents]. . . to take such measures.” See id. at 18-19: see

also 144 Cong. Rec. $11059-02, $11060 (Sept. 28, 1998) (statement of

Lee S. Kreindler). Under the IATA’s system, the willful misconduct

exception of Article 25—or, more recently, the exception as clarified by

Montreal Protocol No. 4—is rendered irrelevant, because the carrier has

contractually agreed to pay all a passenger's damages over $130,000

unless the carrier can show it took all necessary measures to avoid the

damages. See S. Exec. Rep. No. 105-20, at 6, 13 (1998). The Department

of Transportation approved the IATA Intercarrier Agreement on Novem-

ber 12, 1996. See D.O.T. Order 96-11-6, 1996 WL 656334, at *3 (D.O.T.

Nov. 12, 1996). As of April 5, 1998, fifty-one domestic and foreign air

carriers had adhered to the IATA Intercarrier Agreement, including

American. See S. Exec. Rep. No. 105-20, at 57. The parties have not

argued that the IATA Intercarrier Agreement applies retroactively to this

case, and we therefore do not consider the issue.

l4a

Article 25 to measure such conduct. Montreal Protocol No. 4

specifies that it will enter into force in a ratifying jurisdiction

ninety days after the instrument of ratification is deposited

with the Polish government. See S. Exec. Rep. 105-20, at 4

(1998). As a result, the Protocol entered into force in the

United States on March 4, 1999. See Tsui Yuan Tsen, — U.S.

at —n.14, 119 S. Ct. at 674 n.14. We therefore must deter-

mine whether the new language contained in Montreal Pro-

tocol No. 4 applies to this case. We first look to see whether

the amendment effects a substantive change in the legal stan-

dard or merely clarifies the prior law. As we explain, if the

amendment clarifies prior law rather than changing it, no con-

cerns about retroactive application arise and the amendment

is applied to the present proceeding as an accurate restatement

of prior law.

At first, it seems intuitively appealing to conclude that,

because the new language significantly alters the text of the

original Convention, the original Convention’s language may

be presumed to have meant the opposite. For example, Mon-

treal Protocol No. 4’s language includes an express require-

ment that the air carrier must know that damage probably will

result from its conduct, so one might conclude that such a

requirement was omitted from the original Convention. This

intuition runs contrary to our precedent, however, which holds

that an amendment containing new language may be intended

“to clarify existing law, to correct a misinterpretation, or to

overrule wrongly decided cases. Thus, an amendment...

does not necessarily indicate that the unamended statute

meant the opposite” of the language contained in the amend-

ment. United States v. Sepulveda, 115 F.3d 882, 885 n.5 (11th

Cir. 1997).

Moreover, concerns about retroactive application are not

implicated when an amendment that takes effect after the ini-

tiation of a lawsuit is deemed to clarify relevant law rather

than effect a substantive change in the law. See Beverly Com-

munity Hosp. Ass'n Vv. Belshe, 132 F.3d 1259, 1265 (9th Cir.

1997). cert. denied, — U.S. —, 119 S. Ct. 334,142 L.Ed.2d

lSa

276 (1998); Liguilux Gas Corp. v. Martin Gas Sales, 979 F.2d

887-890 (Ist Cir. 1992); Boddie v. American Broadcasting

Cos., 881 F.2d 2675 269 (6th Cir. 1989): cf. Tsui Yuan Tseng,

— U.S. at —, 119 S. Ct. at 667-68 (concluding that a provi-

sion in Montreal Protocol No. 4 limiting recovery for bodily

injuries clarifies, but does not change, prior law under the

Convention). In effect, the court applies the law as set forth

in the amendment to the present proceeding because the

amendment accurately restates the prior law. See Liguilux,

979 F.2d at 890 (“Clarification, effective ab initio, is a well

recognized principle.”).

Several factors are relevant when determining if an amend-

ment clarifies, rather than effects a substantive change to,

prior law. A significant factor is whether a conflict or ambi-

guity existed with respect to the interpretation of the relevant

provision when the amendment was enacted. If such an ambi-

guity existed, courts view this as an indication that a subse-

quent amendment is intended to clarify, rather than change,

the existing law. See Liquilux, 979 F.2d at 890. Second, courts

may rely upon a declaration by the enacting body that its

intent is to clarify the prior enactment. See id. Courts should

examine such declarations carefully, however, especially if

the declarations are found in the amendment’s legislative his-

tory rather than the text of the amendment itself. See Con-

sumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S.

102, 118 n.13, 100 S. Ct. 2051, 2061 n.13, 64 L.Ed.2d 766

(1980). As a general rule, “[a] mere statement in a conference

report of [subsequent] legislation as to what the Committee

believes an earlier statute meant is obviously less weighty”

than a statement in the amendment itself. /d.; see also Penn-

sylvania Med. Soc’y v. Snider, 29 F.3d 886, 900 (3d Cir. 1994)

(attributing no value to a House committee report Stating that

an amendment clarifies prior law when the statement is incon-

sistent with a logical reading of the earlier version of the

Statute and with the legislative history of the earlier statute).

Declarations in the subsequent legislative history nonetheless

may be relevant to this analysis, especially if the legislative

16a

history is consistent with a reasonable interpretation of the

prior enactment and its legislative history. See Sykes v.

Columbus & Greenville Ry., 117 F.3d 287, 293-94 (Sth Cir.

1997) (“Although a committee report written with regard to

a subsequent enactment is not legislative history with regard

to a previously enacted statute, it is entitled to some consid-

eration as a secondarily authoritative expression of expert

opinion.”) (quoting Bobsee Corp. v. United States, 411 F.2d

231, 237 n.18 (Sth Cir. 1969)); SEC v. Clark, 915 F.2d 439,

451-52 (9th Cir. 1990) (“While a statement concerning an ear-

lier statute by members of a subsequent legislature is of

course not conclusive evidence of the meaning of the earlier

statute, the later interpretation may be accorded some defer-

ence where the subsequent legislative commentary accom-

panies the enactment of an amendment to the earlier law.”);

cf. GTE Sylvania, 447 U.S. at 118 n.13, 100 S. Ct. at 2061

n.13 (noting that such history is “sometimes considered rel-

evant,” but “subsequent legislative history will rarely override

a reasonable interpretation of a statute that can be gleaned

from its language and legislative history prior to its enact-

ment’).

1. Ambiguities and Conflicting Interpretations

of Article 25

We first examine whether a conflict or ambiguity existed

with respect to the application of Article 25 as originally

enacted. The English translation of Article 25 allowed a pas-

senger to avoid the liability cap if he could establish that the

injury resulted from willful misconduct by the air carrier. We

announced the Eleventh Circuit’s test for willful misconduct

in Butler. 774 F.2d at 430. Adopting a test used by the Dis-

trict of Columbia Circuit, we held that willful misconduct

“mean([s] ‘the intentional performance of an act with knowl-

edge that the . . . act will probably result in injury oF

damage’ or ‘reckless disregard of the consequences’ or ‘a

deliberate purpose not to discharge some duty necessary to

4 ser, ee 9 whet re 6 ye ee ble

aint i i a retays Ik ah tema lac ea a il a a le tater i ester ots

en OE wer Pe at wee . a

“Aaa tag ek SAME ae CMDR AIL St GA ELATED IAIN RIA ERDAS Es

CAN Rod eM Con FIOM cea

17a

safety.’ ” Jd. (quoting Koninklijke Luchtvaart Maatschappij

N.V. v. Tuller, 292 F.2d 775, 778-79 (D.C. Cir. 1961)).

Butler thus identifies three alternative ways to prove will-

ful misconduct: (1) intentional performance of an act know-

ing that the act likely would result in injury or damage; (2) an

action taken with “reckless disregard” of the consequences; or

(3) a deliberate failure to discharge a duty necessary to safety.

774 F.2d at 430. The first prong questions whether the carrier

subjectively realized at the time of the relevant action that

this action was likely to result in injury or damage to its pas-

sengers. The second prong is less precise, requiring that an air

carrier “recklessly disregarded” the consequences of its acts.

Without offering further explanation of the meaning of the

term “reckless disregard,”* we held that the facts in Butler

established that the defendant’s pilot had recklessly disre-

garded the likelihood that his conduct would cause a plane

crash and therefore had engaged in willful misconduct. Jd. at

431-32.

In other Eleventh Circuit precedent, the term of art “reck-

less disregard” has different meanings depending on the con-

text in which it is used. For example, when examining

whether an individual willfully failed to pay withholding

taxes, reckless disregard requires “something less than actual

knowledge” of a risk. Malloy v. United States, 17 F.3d

329, 332 (11th Cir. 1994). In libel law, on the other hand,

reckless disregard requires a showing that a defendant in fact

knew that a published statement might be false. See Meisler

- The district court in Butler, in addition to finding that the air

carrier engaged in willful misconduct as defined in Article 25, also

pointed out “as a second string to its bow. . . that if it were needful to

resort to local law, the Alabama concept for ‘wantonness’ was substan-

tially equivalent to the Convention's primary standard” for willful mis-

conduct. Butler, 774 F.2d at 430-31. We hypothesized in dicta that, to the

extent that Alabama’s test for wantonness differed from the Convention’s

test for willful misconduct, the air carrier suffered no harm such that the

case must be reversed. /d. at 431. We did not) as American suggests, hold

that the test for willful misconduct under Article 25 is equivalent to the

Alabama standard for wantonness.

18a

v. Gannett Co., Inc., 12 F.3d 1026, 1030 (11th Cir. 1994)

(“ ‘Reckless disregard,’ for purposes of proving actual mal-

ice, is shown if the defendant entertained serious doubts as to

the truth of his publication.) (internal quotation marks omit-

ted). We therefore find little guidance under Butler and other

Eleventh Circuit precedent as to the precise meaning of

reckless disregard in the context of cases filed under the

Convention.

A similar lack of clarity exists in our sister circuits when

applying the term “willful misconduct” in Warsaw Conven-

tion cases. Despite the fact that all circuits to address the

issue have used the term “reckless disregard” when applying

Article 25, see, e.g., Shah v. Pan Am. World Servs., Inc., 148

F.3d 84, 93 (2d Cir. 1998) (carrier must have acted either (1)

with knowledge that its actions would result in injury or

death, or (2) in conscious or reckless disregard of the fact that

death or injury would be the probable consequences of its

actions), cert. denied, — U.S. —, 119 S. Ct. 1033 (1999);

Koirala v. Thai Airways Int'l, Ltd., 126 F.2d 1205, 1209-10

(9th Cir. 1997) (air carrier must intentionally perform an act,

or fail to perform an act, with knowledge that it probably will

result in injury or harm, or intentionally performed an act in

some manner as to imply a reckless disregard of the conse-

quences of its performance); Saba v. Compagnie Nationale

Air France, 78 F.3d 664, 666 (D.C. Cir. 1996) (same); In re

Air Crash Disaster, 86 F.3d 498, 544 (6th Cir. 1996) (same),

the courts have employed a “know-it-when-we-see-it”

approach rather than articulating precisely what is meant by

reckless disregard. See, e.g., Saba, 78 F.3d at 667 (stating

that, although the D.C. Circuit clearly has equated willful

misconduct with reckless disregard, the court “never ha[s]

been very clear as to what we meant by reckless disregard”);

see also Perry S. Bechky, Mismanagement and Misinterpre-

tation: U.S. Judicial Implementation of the Warsaw Con-

vention in Air Disaster Litigation, 60 J. Air L. & Com. 455,

501-02 (1995) (U.S. courts have “srappled” with question

whether reckless disregard envisions a subjective or objective

19a

test, but have “generally regarded ‘willful misconduct’ as

equivalent to recklessness or gross negligence”).

Notwithstanding the fact that courts have avoided precise

definitions of reckless disregard in Warsaw Convention cases,

it is possible to make inferences regarding the analysis the

courts employed in their decisions. For example, in 1961 the

District of Columbia Circuit upheld multiple findings of will-

ful misconduct based on a theory of reckless disregard with-

out finding that the air carrier or its pilots subjectively knew

that their conduct likely would harm passengers. See Tuller,

292 F.2d at 779-80.° The Second Circuit, on the other hand,

admonished a district court for “concluding that the Second

Circuit does not require knowledge that damage would

probably result” when assessing willful misconduct under a

theory of reckless disregard. See Berner v. British Common-

wealth Pac. Airlines, Ltd., 346 F.2d 532, 536 (2d Cir. 1965).

The Berner court further observed that “[t]here must be a

realization of the probability of injury from the conduct, and

a disregard of the probable consequences of such conduct.”

Id. at 537 (quoting Grey v. American Airlines, Inc., 227 F.2d

282~285 (2d Cir. 1955)). Later Second Circuit opinions con-

tinue to require a showing that the carrier knew that its

actions placed its passengers at risk. See, e.g., Republic Nat.

Bank v. Eastern Airlines, Inc., 815 F.2d 232, 239 (2d Cir.

1987) (“factors must be established indicating that such a loss

is likely to occur and that defendant was aware of the prob-

ability”).

The opinion that has attracted the most recent attention in

this area is Saba, in which the District of Columbia Circuit

endeavored to clarify the ambiguity surrounding that circuit’s

definitions of reckless disregard and willful misconduct. Saba

adopts a definition of willful misconduct that is the same in

all practical respects as the definitions adopted in Tuller and

6 The district court insightfully discussed the Tuller opinion in its

order, see In re Crash Near Cali, 985 F. Supp. at 1128 & n.15, and we

_adopt this discussion for the purposes of our analysis here.

20a

Butler: “[w]illful misconduct is the intentional performance

of an act with knowledge that the act will probably result in

an injury or damage, or in some manner as to imply reckless

disregard of the consequences of its performance.” 78 F.3d at

666. The district court in Saba concluded that the carrier

engaged in willful misconduct by recklessly disregarding an

obvious risk—specifically, the possibility that inadequate

packing procedures would expose cargo to water damage

when the cargo was left outside in the rain. /d. at 670. The

circuit court reversed, holding that reckless disregard cannot

be based solely upon a finding that the risk was obvious. /d.

at 669-70. Rather, the plaintiff must prove that the carrier

subjectively knew that the carpets would be exposed to rain

or that the packing procedures used would create a grave risk

of water damage to the cargo if it rained. Jd. at 670.

The District of Columbia Circuit labeled this analysis a

subjective test because it “requires a showing of a subjective

state of mind.” /d. at 668. The court acknowledged that the

carrier’s subjective state of mind may be established solely by

inferences taken from circumstantial evidence; the inferences

thus act as “a legitimate substitution for intent to do the pro-

scribed act because, if shown, it is a proxy for that forbidden

intent.” Jd. Saba’s test thus is satisfied if evidence allows an

inference that the carrier “must have been aware” of a risk

created by its conduct. /d. at 669. The court observed that its

test is more stringent than an objective test that inquires only

if the carrier “should have known” about the danger, because

the test cannot be satisfied by showing merely “an extreme

departure from standards of ordinary care.” Jd.

The holdings of Saba, Berner, and Tuller thus are not read-

ily reconcilable and do not provide a clear definition of what

is meant by reckless disregard in Convention cases. An exam-

ination of the interpretations of willful misconduct by other

countries that are signatories to the Warsaw Convention

reveals a lack of uniformity similar to that contained in

United States case law. Cf. Zicherman v. Korean Air Lines

Co. Ltd., 516 U.S. 217, 226, 116 S. Ct. 629, 634, 133

2la

L.Ed.2d 596 (1996) (“Because a treaty ratified by the United

States is not only the law of this land, [cit.], but also an agree-

ment among sovereign powers, we have traditionally con-

sidered as aids to its interpretation. . . the post-ratification

understanding of the contracting parties.”). According to one

collection of case law interpreting the Warsaw Convention,

foreign jurisdictions have adopted both subjective and objec-

tive tests for willful misconduct, with France, Germany,

Greece, and Korea adopting objective tests and Switzerland

adopting a subjective test. See Goldhirsch at 121 (collecting

cases).’

This brief discussion addresses only a handful of the pub-

lished cases that have construed willful misconduct under

Article 25. Even this limited review, however, reveals a body

of law that frequently is inconsistent and that provides a

vague and nebulous definition of willful misconduct, ren-

dering it difficult to apply. Under these circumstances, this

ambiguity supports a conclusion that Montreal Protocol

No. 4 clarifies, rather than effects a substantive change to,

Article 25.

2. Declarations of Intent Concerning

Montreal Protocol No. 4

Montreal Protocol No. 4 contains no statements concerning

an intent to clarify or change prior law. We therefore will

examine the drafting and legislative history of the amended

language to discern the intentions behind enacting the

amendment. As we have explained, Montreal Protocol No. 4

adopts the Hague Protocol’s substituted language for Article

25; we therefore will look first to the drafting history of the

Hague Protocol, where the negotiations Surrounding the adop-

tion of this language occurred.

Goldhirsch observes—without citing any Cases—that the objec-

tive test is “the one usually applied” in United States courts when assess-

ing claims of willful misconduct. See Goldhirsch at 121].

22a

The delegates at the 1955 Hague Conference began their

deliberations with a draft proposal that narrowed Article 25 to

allow unlimited liability only where the carrier committed a

“deliberate act or omission. . - done with intent to cause

damage.” ICAO Doc. 7686 LC/140, Vol. II, Documents 99

(1956). The Norwegian delegation proposed an amendment to

Article 25 that would force the carrier to bear unlimited lia-

bility if “the act or omission was committed either with the

intention to cause damage or recklessly by not caring whether

or not damage was likely to result.” /d. at 174. The Norwe-

gian delegate explained this language to mean that “the per-

son in question understood that there might be damage

caused by his act or omission, but, nevertheless, he took the

position of saying: ‘I am quite indifferent as to whether dam-

age will occur or not.’ ” ICAO Doc 7686-LC/140 Vol. 1, Min-

utes 196 (1956) (hereinafter “Hague Conference Minutes”)

(emphasis added). Other countries interpreted the proposal the

same way. See id. at 194-96 (statements of Spanish and

British delegates).

The Dutch delegation observed that, if the delegates

intended to include a requirement that the carrier subjectively

realize that damage likely would result from its actions, the

Norwegian proposal’s failure-to specify the requirement

expressly left the proposal open to the same interpretive

problems encountered with the language used in the original

Convention. See id. at 197-98. The Dutch delegation thus pro-

posed replacing the phrase “not caring whether or not damage

was likely to result” with the phrase “with full realization of

the reckless character of his or their conduct and of the dan-

ger that damage would result.” Jd. at 198. After several other

delegates concurred with the Dutch proposal, the conference

finally adopted the phrase “with knowledge that damage

would probably result.” See id. at 198-206. Significantly, both

the Norwegian proposal and the final adopted languge

reflected an effort to retain the same standard of conduct that

had been adopted under the text of the Convention. See id.

at 196 (statement by British delegate that “[oJne of the most

tee

23a

important elements in cases decided by courts on the Warsaw

Convention was that it must be shown that the servants or

agents of the operator. . . had knowledge of the probable

consequences of their acts”); id. at 197 (statement by United

States delegate that the proposed alteration to Article 25,

“although different in drafting from the text of the present

Article 25, continued as nearly as possible to establish the

same rules of law as existed in American jurisprudence”).$

We next turn to the legislative history surrounding the

United States’ adherence to Montreal Protocol No. 4, which

supports this interpretation. According to a report prepared by

the Senate Committee on Foreign Relations, the language that

replaces willful misconduct in Article 25 “does not modify

the scope of the standard. . . [but rather serves as] a clari-

fying response to the difficulties that arose from differing

translations of the text” of the original Convention. S. Exec.

Rep. No. 105-20, at 15 (1998). In the view of the Senate

Committee, the Protocol replaces the term “willful miscon-

duct” with “the common law definition of ‘willful miscon-

duct.’ ” Jd.

The State Department, in response to questions from mem-

bers of the Senate Committee, explained further that the lan-

guage contained in Montreal Protocol No. 4 “is merely an

alternative interpretation of the original French text [of the

Convention], developed to harmonize the various legal inter-

. In fact, Nathan Calkins, the United States’ delegate to the Hague

Conference, wrote that:

While the revised [Article 25] is believed to be substantially a

paraphrase of the present Article 25 as it is administered by

United States courts, there appears to be no doubt that it con-

siderably tightens the article as it is now currently administered

in certain foreign courts. Some foreign countries presently

regard gross negligence as sufficient to bring this article into

play. [Application of the revised language] would bring about

the result of maintaining substantially the same rule of law as is

presently applied in courts within the United States. .

Sa ARES LE:

RE Ea a aah i cat

G. Nathan Calkins, Grand Canyon, Warsaw and the Hague Protocol, 23

J. Air L. & Com. 253, 266-67 (1956).

24a

pretations that had developed from the original.” Id. at 47.

Use of the term “willful misconduct” in the original Con-

vention resulted, in the State Department’s view, in a:

discrepancy between common and civil law concerning

the nature of conduct required to remove limits on lia-

bility. Because the concept of willful misconduct came

to have different connotations in the civil and common

law systems, the drafters [of the amended language]

_ . replaced the legal standards with a description of

the conduct itself.

Id. The State Department therefore concluded that “this

change does not modify the scope of the standard,” id., and

that “the amendment to Article 25 will have no practical

effect on the rights of claimants in cases under the Warsaw

Convention.” /d. at 53.

The Senate Committee and State Department premised their

views upon the express requirement in Montreal Protocol No.

4 that a passenger must prove that the carrier knew its con-

duct would likely result in damage. Among other things, the

Senate report quotes two Second Circuit opinions that require

passengers seeking to establish willful misconduct to prove

knowledge on the part of the carrier that injury likely will

result from its actions. See S. Exec. Rep. 105-20, at 53 (quot-

ing Pekelis v. Transcontinental & W. Airlines, Inc., 187 F.2d

122 (2d Cir. 1951), and Grey v. American Airlines, Inc., 227

F.2d 282 (2d Cir. 1955)). In fact, in Grey, the Second Circuit

emphasized that “[t]here must be a realization of the proba-

bility of injury from the conduct, and a disregard of the prob-

able consequences of such conduct.” 227 F.2d at 23°

9 The Senate Report also quotes the Restatement (Second) of

Torts’ definition of reckless disregard, which does not require that an

actor subjectively realize that his conduct is placing others at risk of

harm. See S. Exec. Rep. 105-20, at 53 (quoting Restatement (Second) of

Torts § 500 (1965) (actor is liable if he performs an act or fails to perform

an act “knowing or having reason to know of facts which would lead a

reasonable man to realize” that his conduct creates an unreasonable risk

of harm and is substantially greater than is necessary to make his conduct

——————————<=<o66 |

25a

In sum, the Senate Committee and the State Department

concluded that Article 25 always has required a passenger to

prove knowledge on the part of the air carrier that its conduct

would likely result in damage, and that Montreal Protocol No.

4 clarifies the existing law to codify expressly this require-

ment. We pay close attention to this conclusion, as “[r]espect

is ordinarily due the reasonable views of the Executive

Branch concerning the meaning of an international treaty.”

Tsui Yuan Tseng, — U.S. at —, 119 S. Ct. at 671. At the same

time, we are mindful of the admonition that subsequent leg-

islative history purporting to Clarify prior law should be

viewed skeptically if it is inconsistent with a reasonable inter-

pretation of the text and legislative history of the earlier

enactment. See GTE Sylvania, 447 U.S. at 118 n.13,110S. Ct.

at 2061 n.13. We therefore will examine the language and

drafting history of the original Convention to ensure that the

subsequent declarations of intent are consistent with the ear-

lier law.

The delegates to the 1929 Warsaw conference drafted the

Convention in French, and used the word “dol” to describe

the level of misconduct that allows a passenger to bypass

Article 22's liability cap.'° Although the term “dol” has “no

precise analogue in the English language,” Second Interna-

tional Conference on Private Aeronautical Law, Oct. 4-12,

negligent) (emphasis added)). We are unable to explain the inclusion of

this citation in the Senate Report, as the Restatement’s definition is

impossible to square with the express language used in Montreal Protocol

No. 4 and the remaining discussion contained in the Report. Under these

circumstances, we cannot conclude that the citation is intended to con-

tradict the express language of the Protocol and create an objective test

under Article 25.

10 The authentic French text of Article 25(1) states:

Le transporteur n’aura pas le droit de se prévaloir des disposi-

tions de la présente Convention qui excluent ou limitent Sa

responsabilité, si le dommage provient de son dol ou d’une faute

qui, d’aprés la loi du tribunal saisi, est considérée comme équiv-

alente au dol.

Godhirsch at 193.

26a

1929, Warsaw, Minutes at v. (Robert C. Homer & Didier

Legrez trans. 1975) (hereinafter “Warsaw Minutes”), “[i]t

implies an act or omission that was done intentionally to

cause a harm.” Goldhirsch at 121. The use of the word “dol”

resulted from the drafters’ dissatisfaction with the phrase

“intentional illicit act, which had been included in an earlier

araft of Article 25. See Warsaw Minutes at 265." Initially, the

delegates could not agree on proposed substitutions to replace

“intentional illicit act.” The German delegation suggested the

term “faute lorde, “ which the delegates equated with a com-

mon-law gross negligence standard, see id. 58-59, 61, 278,

290; while the British delegation proposed to limit the exemp-

tion to acts committed deliberately for the purpose of injury.

See id. at 298. The Brazilian delegate, Alcibiades Pecanha,

presciently observed that the competing proposals raised the

question whether the air carrier’s conduct was to be measured

by an objective or subjective standard, and consequently

endorsed a compromise approach. See id. at 61.

Ultimately, the delegates rejected the inclusion of “faute

lorde” and retained the French word “dol,” adding that a court

may apply the legal equivalent of “dol” as defined by the law

of the forum jurisdiction. Warsaw Convention art. 25(1). As

noted by British delegate Sir Alfred Dennis, the adopted lan-

guage reflects the delegates’ agreement that “dol” was to be

translated into English as willful misconduct, see Warsaw

Minutes at 213, which Sir Dennis defined as “cover[ing] not

only deliberate acts but also careless acts done without regard

for the consequences.” /d. at 59-60.

The drafting history thus reveals that conferees rejected an

effort to define willful misconduct to encompass gross neg-

ligence. Although Sir Dennis’ characterization of willful mis-

conduct suggests that the standard may be satisfied without

establishing that the carrier knew its actions placed its pas-

In the draft considered at the Warsaw conference, the provisions

contained in Article 25(1) of the Convention initially were found in Arti-

cle 24. See Warsaw Minutes at 214. A subsequent amendment placed the

provisions in Article 25(1).

Bain? BA ee

Fei POET ig YAIR Leh OP Np

27a

sengers at risk, the language adopted by the conference does

not expressly embody this characterization. We therefore find

the 1929 drafting history to be ambiguous in this respect.

In sum, the recent legislative history surrounding Montreal

Protocol No. 4 is consistent with a reasonable interpretation

of the original text, and the drafting history for the original

Convention does not suggest otherwise. Given the uniform

and clear statements of those who enacted and adopted the

amended language contained in Montreal Protocol No. 4, we

find these statements to be persuasive indicators that the Pro-

tocol clarifies, rather than effects a substantive change to,

existing law.

C. Summary of Law

For the reasons that we have explained, we conclude that

Montreal Protocol No. 4 clarifies the definition of willful mis-

conduct under Article 25, rather than effecting a substantive

change in the law. The amended language provides a more

precise articulation of the standard, requiring a passenger to

prove that the carrier, or its servants or agents, acted: (1)

“with intent to cause damage,” or (2) “recklessly and with

knowledge that damage would probably result.” Montreal

Protocol No. 4, art. IX, reprinted in Goldhirsch at 358. This

definition of the standard replaces the less precise articulation

set forth in Butler, including the reckless disregard standard

employed by the district court. Under the clarified standard,

we no longer inquire as to reckless disregard, but rather

examine whether the pilots of Flight 965, at a minimum, acted

recklessly and with knowledge that their conduct likely would

result in damage.

Before applying the Protocol’s clarified definition of the

standard to this case, we believe it is necessary to comment

upon the type of evidence that may be used to satisfy the stan-

dard. For this task, we refer to Farmer v. Brennan, 511 US.

825, 114 S. Ct. 1970, 128 L. Ed. 811 (1994), where the Court

announced its standard for “deliberate indifference” in Eighth

Amendment cases. 511 U.S. at 837, 114 S. Ct. at 1979. The

eS A NL TO

28a

Farmer Court’s discussion is helpful here because the Court

explained in great detail how a plaintiff may prove that a

defendant subjectively knew that his or her actions would

likely result in harm to the plaintiff. See id. at 836-44, 114S.

Ct. at 1978-82; see also Saba, 78 F.3d at 669 (analogizing the

Farmer Court’s discussion to a plaintiff s claim that air car-

rier engaged in willful misconduct under Article 25).

Farmer begins its analysis by dividing the legal definition

of recklessness into two distinct standards, one measured

objectively and the other subjectively. 511 U.S. at 836-37,

114 S. Ct. at 1978-79. An objective test, according to Farmer,

examines whether an actor acts oF fails to discharge a duty to

act “in the face of an unjustifiably high risk of harm that is

either known or so obvious that it should be known.” /d. at

836, 114 S. Ct. at 1978. A subjective test, on the other hand,

asks whether an actor has disregarded a risk of harm of which

he is aware. Id. at 836-38, 114 S. Ct. at 1978-79. Stated dif-

ferently, to satisfy the subjective test the actor “must both be

aware of facts from which the inference could be drawn that

a substantial risk of serious harm exists, and he must also

draw the inference.” /d. at 837, 114 S. Ct. at 1979. Because

the language set forth in Montreal Protocol No. 4 also

requires a plaintiff to establish that the carrier knows that its

conduct likely will result in damage—in other words, that the

carrier has drawn an inference that a risk of harm exists—

Article 25 creates what Farmer defines as a subjective test.

Under Farmer, establishing knowledge on the part of the

actor need not be accomplished solely by direct evidence; a

factfinder s permitted to infer from circumstantial evidence

that the actor actually drew the inference that the circum-

stances posed a substantial risk of harm. Id. at 842, 114 S. Ct.

at 1981. Indeed, it is possible to premise this inference on

“the very fact that the risk was obvious.” Jd. Obviousness of

the risk thus plays a role in both the subjective and the objec-

tive tests. The difference, when the tests are put into practice,

is a fine one. The objective test is satisfied if a grave risk is

sufficiently obvious, because the person “should have” been

29a

aware of the risk regardless of whether he actually recognized

it. See Saba, 78 F.3d at 669. The subjective test, on the other

hand, precludes a finding of liability if the factfinder con-

cludes that, even though a grave risk is obvious, no inference

can be made that the actor actually became aware of the risk.

See Farmer, 511 U.S. at 844, 114 S. Ct. 1982 (“That a trier of

fact may infer knowledge from the obvious . . . does not

mean that it must do so.”). In this way, a plaintiff may rely

solely upon circumstantial evidence related to the obvious-

ness of a grave risk to satisfy both tests, but the subjective

test is satisfied only if the circumstances also permit an infer-

ence that the actor “must have known” about the risk. /d. at

842-43, 114 S. Ct. at 1981-82. “It is not enough merely to

find that a reasonable person would have known, or that the

defendant should have known,” of the risk. Jd. at 843 n.8, 114

S. Ct. 1982 n.8. Thus, while an objective test asks whether an

actor “should have known” of an obvious risk, the subjective

test requires, at a minimum, a showing that the actor “must

have known” of the risk. Cf. Spruce v. Sargent, 149 F.3d 783,

786 (8th Cir. 1998).!?

Courts have spoken of a “liability continuum” that runs from

simple negligence to intentional conduct undertaken with the purpose of

harming others. See Saba, 78 F.3d at 668. The subjective test described

in this opinion lies closer on this continuum to intentional misconduct

than does the objective test. While we take great care to specify that the

two standards are distinct, we acknowledge that the differences are

indeed subtle, especialiy when a plaintiff relies solely on circumstantial

evidence. Cf. West v. Waymire, 114 F.3d 646, 651 (7th Cir.) (“Granted,

there may be less here than meets the eye. The difference between a

‘plainly obvious’ and an actually known danger—the critical difference

between the [subjective] and [objective] standards of recklessness—may

have little significance in practice, given the difficulty of peering into

minds. . . .”), cert. denied, — U.S. —, 118 S. Ct. 337 (1997); Gold-

hirsch at 122 (“Despite the difference in approach [in a subjective and

objective test], the results are more or less the same. In cases where the

courts have applied the subjective test, the wrongdoer’s knowledge of

harm was often implied. Therefore, a case that purports to use the sub-

jective standard but which accepts circumstantial evidence to prove the

State of mind of the wrongdoer is so closely akin to an objective test that

there is no longer any necessity to distinguish between the two.”).

30a

D. Entry of Summary Judgment Against American

Having determined the proper test to be applied, we now

turn to American’s argument that the district court improperly

entered summary judgment in favor of the passengers on the

issue of willful misconduct. Without having the benefit of

Montreal Protocol No. 4’s more precise language, the district

court applied a test for willful misconduct that is at odds with

the conclusions contained in our opinion. Acting perhaps out

of an abundance of caution, however, the district court held in

the alternative that, because the pilots of Flight 965 decided

to continue descending even though they knew they were off

course in a dangerously mountainous region, Piamba Cortes

was entitled to summary judgment on the issue of willful mis-

conduct even under a subjective test. If correct, the district

court’s decision maybe affirmed on this ground without

requiring a remand.

We review a district court’s entry of summary judgment de

novo. See City of Tuscaloosa v. Harcros Chems, Inc., 158 F.3d

548, 556 (11th Cir. 1998). Summary judgment is appropriate

only if no genuine issue of material fact exists and the mov-

ing party is entitled to judgment as a matter of law. See Fed.

R. Civ. P. 56(c). In assessing whether the movant has met its

burden of demonstrating the absence of a genuine issue of

fact, the court must view the evidence and all factual infer-

ences in the light most favorable to the party opposing the

motion. See Reynolds v. Bridgestone/Firestone, Inc., 989 F.2d

465, 469 (11th Cir. 1993). An issue of fact is genuine, thus

barring the entry of summary judgment, unless “the record

taken as a whole could not lead a rational trier of fact to find

for the non-moving party.” Matsushita Elec. Indus. Co. Vv.

Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348,

1356, 89 L.Ed.2d 538 (1986)."°

ae Like the district court, we reject American’s broad assertion

that, because Article 25 requires a factual finding regarding an actor’s

state of mind, the issue defies determination as a matter of law on sum-

mary judgment. See In re Air Crash Near Cali, 985 F. Supp. at 1123,

1124 (“(T]he principles of Rule 56 apply to all lawsuits. . . . [E]ven

ee Re Cer

PO CE Me AULT

3la

Piamba Cortes argues that the pilots of Flight 965 knew

that, by continuing their descent even though they knew the

plane was off course in a mountainous region, their conduct

likely would result in harm to the passengers. To justify enter-

ing summary judgment in her favor on this claim, Piamba

Cortes must show that no genuine dispute exists with respect

to three distinct factual issues: (1) the pilots of Flight 965

knew that the plane was significantly off course in a moun-

tainous region; (2) the pilots knowingly elected to continue

descending the plane; and (3) the pilots knew that descending

the plane under such circumstances would likely result in

harm to the passengers.

The second and third issues are easily resolved in Piamba

Cortes’ favor. The record is replete with convincing circum-

stantial evidence that both Tafuri and Williams knew that con-

tinuing a descent in a mountainous region when the aircraft

was significantly off course would create a risk of danger to

the passengers. Most compelling, however, is the fact that

American did not argue to the contrary in the district court

and does not argue to the contrary on appeal. Tafuri and

Williams’ awareness that such conduct would create a risk of

injury to passengers therefore is not at issue here.

The same is true with respect to the pilots’ knowledge that

the plane was descending. Statements by the pilots recorded

by the cockpit voice recorder reveal that the pilots were

actively monitoring the plane’s altitude during the descent.

Furthermore, American once again poses no argument to the

contrary on appeal.

The final, and most difficult, question is whether the pilots

in fact knew that the aircraft was off course while it was

descending. We narrow this inquiry to reflect the fact that, in

assuming that the term willful misconduct requires a subjective inquiry

. , there are many instances in the law where the evidence of state of

mind is so unequivocal that summary judgment is proper and, indeed,

expressly mandated by Rule 56.”). Our holding that Piamba Cortes’ evi-

dence fails to meet this standard does not imply that, given a different set

of facts, a passenger cannot be awarded summary judgment with respect

to the application of the Convention's liability cap under Article 25.

32a

order to enter summary judgment in favor of the passengers,

the pilots must have known that the aircraft was “signifi-

cantly” off course'*—in other words, at risk of leaving the

valley while the pilots continued their descent. If the pilots

believed that the plane was slightly off course, yet well within

the safety of the valley, a factfinder reasonably might infer

that the pilots were not actually aware that their actions prob-

ably would result in injury to the passengers.'° On the other

hand, the pilots need not have realized that the aircraft had

flown all the way out of the valley to realize that their con-

duct placed the passengers at risk of harm. As American con-

cedes, if the pilots knew the plane was significantly off

course, the only reasonable inference a factfinder could make

is that the pilots knew the plane was at risk of crashing into

the mountains. Consequently, entry of summary judgment in

favor of Piamba Cortes hinges upon a narrow finding that a

reasonable juror could only infer that Tafuri and Williams

realized the aircraft was significantly off course during the

time they continued their descent.

The district court concluded that the only plausible infer-

ence to be taken from the evidence was that the pilots knew

that they had strayed significantly away from the published

arrival path. We agree with the district court that a reasonable

factfinder must conclude that the pilots knew they were off

course. We disagree, however, that the only reasonable infer-

ence was that the pilots knew they were significantly off

course; to the contrary, even though more plausible inter-

pretations suggest otherwise, a factfinder reasonably might

conclude that the pilots believed they were near enough to the

1 The district court also used the words “profoundly” and “radi-

cally” off course.

as The converse, of course, also is true, that even if the pilots

believed they were close to the published flight path, it is possible to

infer that the pilots nonetheless recognized that their conduct placed the

passengers at risk of injury, thus creating a question to be resolved by the

factfinder. As we explain, however, this inference is not mandatory under

the facts of this case.

33a

published arrival path that they did not realize they had

placed the passengers at risk of harm.

The district court set forth a detailed and thorough account

of the circumstantial evidence Supporting a finding that the

pilots realized they were not on the published flight arrival

path to Cali. See generally In re Crash Near Cali, 985 F.

Supp. at 1138-43. This occurred after the pilots mistakenly

entered “Romeo” instead of “Rozo” into the FMC and the

plane turned east toward the mountains. According to the dis-

trict court, the pilots likely would have realized that, in light

of the amount of time they had been flying east, the aircraft

in fact was significantly off the published course to the Tulua

way point. Nonetheless, the evidence did not show conclu-

sively that the pilots perceived the amount of time that they

had been flying east toward the mountains, thus allowing a

reasonable inference that the pilots believed the aircraft to be

near the published arrival path even after the turn. Jd. at 1140.

The circumstances changed, however, at the moment marked

21:38:54 on the cockpit voice recorder, when the pilots real-

ized that the aircraft was headed in the wrong direction and

must turn to the right to intercept the proper course. As sum-

marized by the district court, the pilots’ statements—such as

“[w]here’re we going” and “we got fucked up here didn’t

we?”—added with expert testimony describing this portion of

the flight—allow only one reasonable inference: that the

pilots realized that the plane was not on the published arrival

path.

The evidence is not equally compelling, however, with

respect to the pilots’ knowledge of the extent that they had

traveled off course. We agree with the district court that,

given the pilots’ statements on the cockpit voice recorder, a

highly plausible inference to be taken from the evidence is

that “the pilots did not even know precisely where they were

in the sky.” Jd. at 1142. Nonetheless, at one point during the

pilots’ discussion of the aircraft’s location Tafuri says,

“You’re okay, you’re in good shape now,” which the district

court concedes “can be read as an indication that Tafari, at

34a

least, believed the plane was on or very near the published

route.” Jd. at 1143.

The district court considered this statement by Tafuri in the

context of other circumstantial evidence. We do the same, and

conclude that evidence relating to the plane’s instrument read-

ings permit a reasonable inference that Tafuri’s statement

actually reflects a belief that the plane was not at risk of leav-

ing the valley. At the moment marked 21:39:24 on the cock-

pit voice recorder, Tafuri dialed the correct frequency for the

Tulua way point into his EHSI, which prompted the plane’s

D-bar indicator to shift on the computer screen. Up until that

moment, the EHSI had been programmed using the frequency

for an incorrect way point located well to the east of the val-

ley, thus causing the D-bar indicator to indicate that the Tulua

way point was located to the left of the plane. American

argues that the shift of the D-bar indicator allowed Tafuri to

believe that they had passed the Tulua way point or a vector

leading to the published arrival path, and thus supports a con-

clusion that Tafuri believed that he was close to the published

arrival path and needed only to continue a right-hand turn in

order to intersect the arrival path.

Piamba Cortes and the district court offer several reasons

why this inference should be rejected as unreasonable. '® First,

the compass heading during this portion of the flight was

approximately 120 degrees compared to the proper compass

heading (a radial heading south and slightly west at approx-

imately 202 degrees) used in the published arrival path. The

district court found that even a brief glance at the compass

heading would have informed the pilots that they had veered

” The district court’s discussion of the permissible inferences to

be taken from the plane’s instruments is contained in the portion of the

order addressing whether the pilots engaged in willful misconduct as

measured under an objective test, and thus the district court’s analysis is

framed in the context of whether the pilots “should have recognized” how

far they veered off course based on this evidence. The reasoning under-

lying the district court’s discussion nonetheless is useful to our discus-

sion of whether the pilots “must have known” how far they veered off

course.

35a

dramatically off course. Second, once Tafari dialed the proper

frequency for the TuJua way point, the pilots necessarily real-

ized that the Tulua way point was located to the left and

behind the plane; thus, the district court found that the right-

hand turn executed by the pilots was inconsistent with an

attempt to fly over the Tulua way point or to intercept the

flight path. Third, the pilots noted at one point that their dis-

tance to the airport was thirty-eight miles, but recognized that

this distance remained thirty-eight miles even after the pas-

sage of one minute and fourteen seconds, which the district

court found would have communicated to the pilots not only

that they were not heading towards the airport, but that they

had traveled a significant distance off course.

Considered together, this circumstantial evidence certainly

permits a factfinder to infer that the pilots realized that the

aircraft had veered significantly off course. This interpreta-

tion, however, is not the only reasonable inference that can be

taken from this evidence, as the entry of summary judgment

requires. No evidence conclusively demonstrates that the

pilots actually monitored their compass heading, or that the

pilots in fact recognized that, because they failed to reduce

the distance between the aircraft and the airport, they had

traveled a significant distance from the published flight path.

If the pilots failed to put these connections together, a

factfinder reasonably may infer that the shift in the D-bar

indicator led the pilots to believe that they had just inter-

sected the vector leading to the published flight path and thus

were Close to the flight path and within the valley. Combined

with the plausible inference taken from Tafuri’s comment that

“[y]ou’re okay, you’re in good shape now,” it is not unrea-

sonable to infer that the pilots believed they were close to the

published flight path and thus did not recognize that their

actions placed their passengers at risk of injury.

Piamba Cortes also places great reliance upon the fact that

Tafuri and Williams’ actions violate FAA regulations and the

principles of flying in Latin America that American teaches

its pilots. We agree with Piamba Cortes that the pilots’ fail-

36a

ure to comply with their training and with FAA regulations

certainly constitute circumstantial evidence that supports a

finding that Tafuri and Williams knew their conduct placed

the passengers at risk. Under the totality of the evidence in

this case, however, a factfinder may reasonably infer that,

despite the pilots’ training and compliance with FAA regu-

lations, they were not subjectively aware at the time they exe-

cuted their descent into Cali that the descent probably would

result in damage."’

The District of Columbia Circuit observed that when “no

one knows exactly what happened” to cause a pilot to commit

errors and crash and the plaintiff has no unequivocal direct

evidence, “questions [of willful misconduct] depend upon

inferences to be drawn from essentially circumstantial evi-

dence. . . [and] [o]ne can hardly imagine a clearer case in

which such questions should have been left to the jury.” /n re

Korean Air Lines Disaster of September 1, 1983, 932 F.2d

1475, 1481 (D.C. Cir. 1991) (first and third alterations in

original). Of course, Korean Air did not include a recording

of the pilots’ conversations in which they stated that they

were off the published arrival path. Nonetheless, under the

circumstances of this case, other statements in the pilots’ con-

versation and circumstantial evidence permit a reasonable

inference that the pilots believed they were close to the flight

path, creating a question of fact whether the pilots recognized

that their conduct probably would result in damage.

For these reasons, we conclude that the district court erred

in entering summary judgment against American with respect

to unlimited liability under the Warsaw Convention. We there-

fore vacate the district court’s entry of summary judgment on

the issue of American’s liability in excess of the Convention's

liability cap, and remand for a determination by the trier of

" Piamba Cortes also places great reliance upon “admissions” that

American has made during the course of the proceedings. In our view,

none of the admissions, when viewed in a light most favorable to Amer-

ican, compel a finding that Tafuri and Williams knew that Flight 965 was

significantly off course or that Tafuri and Williams knew that their con-

duct likely would result in damage.

37a

fact whether Piamba Cortes may seek compensatory damages

in excess of the limit created by the Convention.

III. CONFLICT OF LAWS CONCERNING

COMPENSATORY DAMAGES

The district court concluded that, under the relevant con-

flict-of-laws rules,'* Florida’s compensatory damages scheme

governed all claims arising from the crash of Flight 965 that

were filed in the Southern District of Florida. regardless of

whether the claims were filed on behalf of domiciliaries of

Florida or Colombia. The district court therefore applied

Florida law to determine the compensatory damages to which

Piamba Cortes was entitled for the death of her sister, who

was a domiciliary of Colombia at the time of the crash. Amer-

ican argues that the proper conflict-of-laws analysis must

focus upon the decedent’s domicile, and thus the district court

Should have applied Colombia’s compensatory damages

scheme to Piamba Cortes’ claims.

A district court’s resolution of a conflict-of-laws issue is

a legal question that we review de novo. See LaFarge Corp.

v. Travelers Indem. Co., 118 F.3d 1511, 1514-15 (11th Cir.

1997).

Before turning to the merits of this issue, it is necessary to

clarify the scope of this opinion as it relates to the many cases

arising out of the crash of Flight 965. In its order on conflict-

of-laws issues, the district court determined that, with certain

limited exceptions, Florida compensatory damages law

applies across the board to all cases filed in the Southern Dis-

trict of Florida. Here, we are presented with a much narrower

18 American removed this case to federal court under both diver-

sity and federal question jurisdiction. The district court observed that

Florida's conflict-of-laws rules are the same as federal common-law con-

flict-of-laws rules, because both have adopted the Restatement (Second)

of Conflict of Laws. See SR-365-5-6 n.3. Therefore, the same rules

would be applied under either diversity jurisdiction or federal question

jurisdiction. See id.

38a

inquiry, that is, determining which compensatory damages

law must be applied to Piamba Cortes’ claims. Although the

district court at times considered the conflict-of-laws problem

in the context of all the passenger lawsuits aggregated

together—in other words, regardless of the domiciles of the

iidividual decedents—the district court tailored its final res-

olution of the conflict-of-laws problem by separating the

decedents by domicile. See, ¢.8.. SR-365-30n.10. The district

court thus relied upon independent reasons for applying

Florida compensatory damages law to claims involving dece-

dents who, like Piamba Cortes’ sister, were domiciliaries of

Colombia. Consequently, we are able to review the district

court’s ruling as it pertains specifically to Piamba Cortes’

claims. Our analysis focuses upon this narrow issue, however,

and we do not purport to review the conflict-of-laws issues

raised by any other cases related to the crash of Flight 965.

A. Applicable Law

Piamba Cortes’ claims arise under the Warsaw Convention,

which provides that air carriers shall be liable “for damage

sustained” in the event of the death or wounding of a pas-

senger on a flight that falls under the scope of the Conven-

tion. Warsaw Convention art. 17. In Zicherman v. Korean Air

Lines Co., 516 U.S. 217, 116 S. Ct. 629, 133 L. Ed. 2d 596

(1996), the Supreme Court held that, with respect to the types

of compensatory damages awarded to passengers, the Con-

vention “provide[s] nothing more than a pass-through, autho-

rizing [courts] to apply the law that would govern in absence

of the Warsaw Convention.” 516 U.S. at 229, 116 S. Ct. at

636. Here, the district court concluded that the question of

compensatory damages created a conflict-of-laws problem

and thus applied the “most significant relationship” test artic-

ulated in the Restatement (Second) of Conflict of Laws

(1971) (hereinafter “Restatement”). The parties do not chal-

lenge this decision.

The Restatement provides that, in a wrongful death action,

“the local law of the state where the injury occurred deter-

39a

mines the rights and liabilities of the parties unless, with

respect to the particular issue, some other state has a more

significant relationship . . . to the occurrence and the parties,

in which event the local law of the other state will be

applied.” Restatement § 175 (general rule); see also id. § 178

(specific rule for wrongful death actions). This preference for

the state in which the injury occurred all but disappears, how-

ever, when the conflict of laws involves the issue of damages

in wrongful death actions. As the commentary observes, the

fact that conduct leading to a wrongful death—as well as the

death itself—occurred in a certain jurisdiction does not, by

virtue of these contacts alone, create a significant interest for

that jurisdiction to apply its damages law to a subsequent law-

suit. See id. § 178 cmt. b. Courts instead are instructed to refer

to the general conflict-of-laws principles set forth in section

6, as well as principles specific to tort claims set forth in sec-

tion 145, to identify jurisdictions that possess the greatest

interest in applying their compensatory damages schemes. See

id. §§ 175 & 178. For these reasons, no rigid rules exist for

resolving conflict-of-laws problems in wrongful death actions

governed by the Restatement, requiring instead an examina-

tion of the interests created by the facts and circumstances

presented in each case. See Judge v. American Motors Corp.,

908 F.2d 1565, 1568 (11th Cir. 1990).

B. Interested Jurisdictions Under Section 145

Section 145 lists four types of contacts to be taken into

account when identifying jurisdictions that possess an inter-

est in applying their compensatory damages schemes:

(a) the place where the injury occurred;

(b) the place where the conduct causing the injury

occurred;

poration, and place of business of the parties; and

40a

(d) the place where the relationship, if any, between the

parties is centered.

Restatement § 145(2). Under the facts and circumstances of

this case, we identify four jurisdictions that possess interests

in applying their compensatory damages schemes to this case:

Colombia, the place of the crash and the domicile of both the

plaintiff and the decedent; Florida, the domicile of the two

deceased pilots and the state in which their estates were pro-

bated,'? as well as a place where American transacts signifi-

cant business; Texas, the principal place of American’s

business; and Delaware, the state of American’s incorpora-

tion. The parties argue in favor of only two jurisdictions,

Colombia and Florida, so we need not consider further the

interests of Texas and Delaware.

American argues that Florida’s interests in this case are

illusory for two reasons First, American observes that it

agreed to satisfy any judgment against the estates of the

pilots, thus eliminating the contacts created by these defen-

dants. American further points out that Piamba Cortes dis-

missed her claims against the pilots’ estates several months

after the district court resolved the conflict-of-laws issue.

Second, American argues that its business activities in Florida

are not sufficient to create a relationship with Florida under

section 145(2)(c). We consider each argument in turn.

American’s agreement to satisfy a judgment against the

estates of the two pilots does not, under the circumstances of

this case, extinguish the relationship with Florida under sec-

tion 145(2). We first observe that American has not pointed to

any evidence in the record to support its assertion that such an

agreement exists. Even if such evidence existed, satisfaction

agreements may be disputed in later stages of litigation and

do not always remove the defendant entirely from the scope

of the case. Of equal concern is the possibility that a defen-

dant, seeking to avoid the application of a jurisdiction’s gen-

erous damages scheme, could agree to satisfy judgments

9 In her Complaint, Piamba Cortes named the estates of the two

pilots as defendants.

4la

against any co-defendants who are domiciliaries of that juris-

diction. We do not imply, of course, that American’s agree-

ment with the estates of the two pilot defendants reflected this

type of strategic behavior; we make the observation solely to

demonstrate the possibilities for opportunistic conduct that

might arise if such agreements could dictate the results of

conflict-of-laws problems.

Piamba Cortes’ decision to dismiss her claims against the

estates of the pilots several months after the district court

resolved the conflict-of-laws issue does not alter our con-

clusion. American has not shown, and does not argue, that at

the time of the district court’s decision the estates were

improperly named parties to the lawsuit. Consequently, at the

time the district court resolved the conflict-of-laws issue, the

inclusion of the pilots’ estates as defendants created a viable

relationship with Florida.”°

Second, American’s argument concerning the insufficiency

of its business contacts with the state of Florida misconstrues

the language used in section 145. According to American, a

state has a relationship under section 145(2)(c) only if the

State is a party’s “principal place of business.” The text of the

Restatement, however, directs courts to consider the “place of

business of the parties.” Restatement § 145(2)(c). The authors

of the Restatement were familiar with the term of art “prin-

cipal place of business” and used it several times in the com-

mentary to section 145, see § 145 cmt. e, at 421. Given the

authors’ use of the less specific phrase “place of business” in

the text of the section, as well as in other portions of the com-

mentary, see id, we conclude that, had the authors intended to

limit § 145(2)(c) to a corporation's “principal place of busi-

ness,” they would have done so expressly.

We agree that a party’s principal place of business ordi-

narily should be afforded more weight than a jurisdiction in

20 Because the record contains no indication that the estates of the

two pilots were improperly named defendants in this case, we need not

concern ourselves with the possibility that Piamba Cortes included these

defendants solely for forum-shopping purposes.

42a

which the party has only business interests, but we cannot

agree that a jurisdiction in which the party has sizeable busi-

ness activities—especially when the activities are directly

related to the relevant litigation—has no relationship with the

litigation for purposes of section 145(2). This case exempli-

fies this principle, as the district court found not only that

Miami serves as one of American’s primary transportation

hubs, but also that Miami is the site from which American

orchestrates its Latin American operations. Consequently,

while we do not overstate the relationship created by these

circumstances, see id. (“[t}he fact. . . that one of the parties

_ . does business in a given state will usually carry little

weight of itself”), we conclude that American’s substantial

business activities in Florida in this case justify the district

court’s finding that Florida has an interest in this litigation

under section 145(2).

C. Most Significant Interests Under Section 6(2)

Having identified both Florida and Colombia as interested

sovereigns, we now must specify which sovereign’s interests

are more “significant.” Judge, 908 F.2d at 1569.

To discharge this task, we cannot simply add up the fac-

tors delineated in section 145(2) and then apply the law

of the sovereign with the greatest numerical total... .

Rather, we must, as mandated by section 145(1), turn to

the factors delineated in section 6 to determine which

sovereign has the most significant contact.

Id. Section 6(2) lists seven factors to consider when weighing

the interests of a sovereign in a particular case:

(a) the needs of the interstate and international systems,

(b) the relevant policies of the forum;

relative interests of those states in the determination of

a particular issue,

43a

(d) the protection of justified expectations;

(e) the basic policies underlying the particular field of

law;

(f) certainty, predictability and uniformity of result; and

(g) ease in the determination and application of the law

to be applied.

Restatement § 6(2)(a)-(g). As we explain, the importance of

these factors varies depending on the nature of the issue that

underlies the conflict of laws. Jd. § 145 cmt. b.

1. Balancing of Interests Under Sections 6(2)(b) and (c)

We observed in Judge that the section 6(2) analysis for

wrongful death claims “turns in large part on the balance of

competing interests contemplated by sections 6(2)(b) and

6(2)(c).” 908 F.2d at 1569. This balancing occurs in three

Steps. First, we identify the particular rule of law to be

applied by each interested state. Jd. Second, we identify the

purposes or policies underlying each state’s rule. /d. Third,

we “assess the degree to which the purposes underlying each

rule would be furthered by the rule’s application.” Jd. at 1569-

70. “As a general proposition, ‘it is fitting that the state

whose [policy] interests are most deeply affected should have

its local law applied.’ ” Jd. at 1570 (citation omitted).

Identifying the particular rule of law to be applied by each

interested state has proven to be a difficult enterprise. Florida

law is rather straightforward, permitting “survivors,” mean-

ing one’s spouse, children, parents, dependent blood relatives,

and adoptive siblings, to collect the value of lost support and

services, future loss of support and services, loss of com-

panionship or parental companionship, mental pain and suf-

fering, medical or funeral expenses, loss of earnings, and net

accumulations. Fla. Stat. Ann. §§ 768-18 & 768.21 (West

1997). Identification of the proper Colombian law that would

apply in this case, on the other hand, raised “pervasive and

profound” differences of opinion among the parties not only

44a

on the subject of the proper elements of compensatory dam-

ages, see SR-365-19-26, but also on the role of judicial

authority under Colombia’s civil law system to resolve this

question. See id. at 27-29. After an exhaustive examination of

Colombia’s law on compensatory damages, the district court

found itself unable to reach any final conclusions with respect

to whether limitations exist in the types of compensatory

damages recoverable under Colombian law. See id. at 19.

American nonetheless assumes on appeal that Colombian

law imposes a cap on the recovery of non-pecuniary damages

(approximately $8,000) and disallows recovery of net accu-

mulations. American does not challenge directly the conclu-

sions of the district court with respect to the lack of clarity in

Colombian law; if American intended to do so implicitly, it

points to no evidence that calls into question the district

court’s ruling.?! Even so, because we conclude that the district

court correctly applied Florida’s compensatory damages

scheme regardless of whether Colombian law restricts recov-

ery, we will follow American’s assumption for purposes of

our analysis in this opinion.

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