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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2000
- **Citation:** 528 U.S. 1136

## Text

(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 ¢

i
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.

ii
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

iv

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

21

Vv

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

vi
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

ix

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.

2

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).

'
d
3

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...)

5

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.

6

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

7

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.

8

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").

9

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

10

concepts.’

Certiorari review will give this Court the Opportunity to
refine treaty interpretation methodology, resolve a conflict,
correct fundamental error and prevent injustice.

I.

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).

Oo

1]

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...)

12

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.

13
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...)

ig

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

15

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).

16

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.

17

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.

18

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.

19

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.

20

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.

21

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).

22

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.)

23

(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

24

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

25

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

26

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

27

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

28

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).

29

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

la

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-

3a

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

4a

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.

Sa

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.?

2

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.

6a

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

7a

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-

8a

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

9a

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 ¢ templated by the Restatement itself,
can assume particu-si significance when the tremendous
expenditures of tin» and resources necessary to interpret and
apply an interested jurisdiction’s law would exact a signifi-
cant toll on the parties as well as the court.

For these reasons, we conclude that the district court cor-
rectly determined that Florida law governed the compensatory
damages to be awarded to Piamba Cortes.

IV. APPOINTMENT OF LIABILITY

American next argues that the district court erred by refus-
ing to apply Florida’s comparative fault statute, which directs
courts to apportion liability for noneconomic damages accord-
ing to fault.** According to American, although the Warsaw
Convention contains no express language providing for appor-
tionment of liability, Article 17’s broad language on the issue
of damages acts as a “pass-through” to local law and thus
requires the application of Florida’s apportionment statute.
The district court rejected this argument, holding that the
overall scheme of liability created by the Convention obliges
the air carrier to be liable for all damage sustained by a pas-
senger. /n re Crash Near Cali, 985 F. Supp. at 1153.

American’s claim requires us to determine whether the dis-
trict court properly construed the terms of the Warsaw Con-
vention, which is a question of law that we review de novo.
See Yapp v. Reno, 26 F.3d 1562, 1565 (11th Cir. 1994).

Article 17 of the Warsaw Convention provides that an air
carrier “shall be liable for damage sustained in the event of
the death or wounding of a passenger.” Warsaw Convention
art. 17. The plain meaning of the text suggests that the carrier
bears liability for the damages suffered by its passengers; a

“ The district court concluded that, because Florida’s apportion-
ment statute does not apply to this case, the court did not need to address
conflict-of-laws issues related to the application of a state apportionment
Statute. We reach the same conclusion on appeal.

a rttttitesws~—‘—SS

52a

contrary interpretation that the carrier is liable for damage for
which it alone is responsible, or for damage caused by no
other tortfeasor, inserts words and inferences into the text
when it is not clear that such additions are intended.

An examination of the surrounding provisions supports this
interpretation. Article 21, for example, adopts a comparative
liability standard if actions taken by the injured passenger
caused or contributed to the passenger's damages. Warsaw
Convention art. 21. Article 20 provides that the carrier 1s
absolved from liability if it can prove that it took “all nec-
essary measures” to avoid the damage. /d. art. 20. These pro-
visions suggest that the drafters expressly contemplated when
a carrier’s liability should be reduced based on the conduct of
others: if the drafters intended to reduce further the carrier's
liability based on the conduct of other tortfeasors, they would
have added such a provision.

Our conclusion is not altered by the Supreme Court's hold-
ing in Zicherman. In that case, the Court concluded that,
because Article 17 uses only the term “damage,” the issue of
compensation for one’s injuries is unresolved by the Con-
vention and is governed by the law of the forum jurisdiction.
See Zicherman, 516 U.S. at 229, 116 S. Ct. at 636. The Court
restated this position in Tsui Yuan Tseng, observing that “[the]
Warsaw drafters intended to resolve whether there is liability,
but to leave to domestic law (the local law identified by the
forum under its choice of law rules or approaches) determi-
nation of the compensatory damages available to the suitor.”
— USS. at —, 119 S. Ct. at 672. The comparative fault regime
urged by American goes beyond the issue of the amount of
damages available to the suitor: it acts to limit the liability, or
fault, of the air carrier. See Fla. Stat. Ann. § 768.81(3) (“the
court shall enter judgment against each party liable on the
basis of such party's percentage of fault”). Under this system,
if a defendant and a nonparty each are found to be fifty per-
cent at fault for a plaintiff's injury, the defendant is liable only
for fifty percent of the plaintiffs damages. See Fabre v. Marin,
623 So.2d 1182, 1187 (Fla. 1993), receded from on other

iba Uk PME Vice PP Thad

53a

grounds, Wells v. Tallahassee Mem. Reg’! Med. Ctr., Inc., 659
So.2d 249 (Fla. 1995). Application of Florida’s comparative
fault regime thus would intrude upon the determination of an
air carrier’s liability for a passenger injuries, which the
Supreme Court recognized is governed exclusively by the
terms of the Convention.”®

Our decision will not require American to pay more dam-
ages than the amount for which it is responsible. Florida, like
most other jurisdictions, has recognized a right of contribu-
tion on behalf of a tortfeasor who pays for the wrongdoings of
additional tortfeasors. See Fla. Stat. Ann. § 768.31 (1997): see
also Restatement (Second) of Torts § 886A (1982 App.) (not-
ing that, by 1982, eighty percent of states had recognized
right of contribution). American thus is able to pursue a sep-
arate cause of action, independent of the Warsaw Convention,
against other potential tortfeasors that contributed to the pas-
senger’s injuries. See West Am. Ins. Co. v. Best Prods. Co.,
541 So.2d 1302, 1304 (Fla. Ct. App. 1989) (a cause of action
for contribution against a joint tortfeasor exists by virtue of
a right and remedy created by statute); cf. Restatement (Sec-
ond) of Torts § 886A(2) (1977) (right of contribution arises
after one tortfeasor has discharged more than his equitable
share of common liability). Indeed, American has filed pre-
cisely such an action related to the crash of Flight 965.

For these reasons, we conclude that the district court cor-
rectly rejected American’s request to apportion liability
according to Florida law.

- American cites In re Crash Disaster Near Cerritos, California,
on August 31. 1986, 982 F.2d 1271 (9th Cir. 1992), to support its argu-
ment that liability has been apportioned in a Warsaw Convention context
before. We note that the procedural context in which the Cerritos court
apportioned liability is far from clear in the opinion. At any rate, the
issue of whether liability may be apportioned under the Warsaw Con-
vention was not before the Cerritos court, and we therefore do not find
the case to be persuasive authority on this issue.

54a

V. ADMISSION OF FACTS SURROUNDING CRASH
DURING DAMAGES TRIAL

Piamba Cortes has filed a cross-appeal in which she argues
that the district court erred by preventing any reference dur-
ing the trial on damages to the factual circumstances sur-
rounding the crash. Piamba Cortes claims these facts are
relevant to the determination of compensatory damages for
mental pain and suffering. Moreover, Piamba Cortes contends
that, for the same reason, the jury should have been informed
of the legal determination that the pilots of Flight 965
engaged in willful misconduct resulting in the crash.

The district court held that “CcJounsel will not be permitted
to make any reference in voir dire, opening statements, tes-
timony, or closing argumentto. . . [the court’s] finding of
willful misconduct against American.” SR-602-4. The district
court later clarified its ruling during the following colloquy
with counsel:

THE Court: Counsel will not be permitted to make any
reference during the course of the trial in opening state-
ment or otherwise to the finding. . . of willful mis-
conduct against American Airlines. You may tell them,
as the Court will tell them, that the issue of liability has
been settled, the only issue in this matter is the matter of
damages... -

MR. PARKS: You have no problem, as I understand it,
though, of us giving a brief overview, that the airplane
crashed, without going into the facts of the case?

THE Court: Without going into the facts. I am going to
tell them the airplane crashed when I begin my voir dire.

MR. PARKS: Yes, Sif.

THE Court: But, in any event, no details about conduct,
all right?

Et ea ee a Re EL ee Sn EL

55a

MR. PARKS: I understand that. And we do object to it but
thank you.

SR-7-9-10.

We review a district court’s ruling on the admissibility of
evidence for abuse of discretion, and evidentiary rulings will
be overturned only if the moving party establishes that the rul-
ing resulted in a “substantial prejudicial effect.” Judge v. Rod-
man, 105 F.3d 1339, 1341 (11th Cir. 1997). When applying an
abuse of discretion standard, “we must affirm unless we at
least determine that the district court has made a ‘clear error
of judgment,’ or has applied an incorrect legal standard.”
SunAmerica Corp. v. Sun Life Assurance Co. of Canada, 77
F.3d 1325, 1333 (11th Cir. 1996) (citation omitted).

The admissibility of evidence in a federal action is gov-
erned by the Federal Rules of Evidence, not state law. See
Heath v. Suzuki Motor Corp., 126 F.3d 1391, 1396 (11th Cir.
1997). Nonetheless, state law may assist in defining what evi-
dence is material to an issue, and we previously have relied
upon Florida authority when identifying evidence that is
material to a determination of damages under Florida’s
wrongful death statute. See Hiatt v. United States, 910 F.2d
737, 743 (11th Cir. 1990). In light of the absence of federal
law on this issue, we will look to Florida law for guidance.’

Florida law provides that, when computing damages for
pain and suffering endured by a plaintiff, “[i]n most instances

. . evidence describing the details of an accident is logically
relevant and admissible, even where liability has been admit-
ted, to place the extent of injuries suffered by the plaintiff, as
well as the degree of pain endured, in the proper context.”
White v. Westlund, 624 So.2d 1148, 1152 (Fla. Ct. App. 1993).
The admissibility of such evidence in a wrongful death action

- At any rate, Florida evidence law governing the relevance of and

prejudice created by evidence is essentially the same as the Federal Rules
of Evidence. See Brown v. State, 719 So.2d 882, 887 (Fla. 1998) (observ-
ing that § 90.403 of Florida’s Evidence Code, which governs the admis-
sibility of evidence when it presents the risk of prejudicing a party, “is
in essence a restatement of Federal Rule [of Evidence] 403”).

Tee

56a

brought by a survivor of the decedent is not as clear. Damages
for such mental pain and suffering, among other things, “must
bear some reasonable relation to the facts” of the case. See
Florida Dairies Co. v. Roaers, 161 So. 85, 88 (Fla. 1935)
(petition for re-hearing). On at least one occasion a court has
admitted evidence depicting an accident scene to establish the
survivor’s damages for mental pain and suffering, although
the court also excluded a graphic photo of the decedent
because its probative value was outweighed by the danger of
unfair prejudice. See Johnson v. Florida Farm Bureau Cas.
Ins. Co.. 542 So.2d 367, 370 (Fla. Ct. App. 1988). Given this
law, American posits, and we agree, that Florida law may per-
mit the introduction of facts underlying a fatal accident to
establish a survivor's pain and suffering but does not require
that such evidence be admitted under all circumstances. Cf.
White, 624 So.2d at 1152 (facts underlying accident usually
are relevant, but “the extent of information that may be
received in evidence will vary depending upon the circum-
stances of each case”).

In this case, the district court excluded not only any ref-
erence to the legal finding that the pilots of Flight 965
engaged in willful misconduct prior to the crash, but also any
evidence relating to the facts of the crash. Although it appears
that the evidence relating to the facts of the crash may have
been admissible under Florida law, we cannot conclude that
the district court’s decision to exclude this evidence consti-
tutes an unreasonable balancing of the probative value of this
evidence with its potential for undue prejudice. As for Piamba
Cortes’ request to inform the jury of the legal finding of will-
ful misconduct, this action undoubtedly would have unduly
prejudiced American when compared to the value of this
information in determining compensatory damages. Conse-
quently, the district court did not abuse its discretion in
excluding the evidence.

57a

VI. CONCLUSION

For the reasons set forth in this opinion, we VACATE IN
PART the district court’s entry of summary judgment on the
issue of American’s liability, and REMAND the case for fur-
ther proceedings consistent with this opinion. We AFFIRM the
district court’s determination that Florida compensatory dam-
ages law governs Piamba Cortes’ claims, that Florida’s com-
parative fault statute is not applicable to this case, and that
evidence relating to the facts of the crash may be excluded
during a trial to determine Piamba Cortes’ compensatory
damages.

58a

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

No. 96-MD-1125
Oct. 10, 1997

IN RE AIR CRASH NEAR CALI, COLOMBIA
ON DECEMBER 20, 1995

AMENDED ORDER GRANTING MOTIONS
FOR SUMMARY JUDGMENT ON LIABILITY

THIS CAUSE comes before the Court upon the PSC’s
motion for partial summary judgment as to the issue of lia-
bility in the passenger cases, filed July 14, 1997, and the
cabin crew Plaintiffs’ separate motion for summary judgment
as to liability, filed July 14, 1997. With their motion, the pas-
sengers seek entry of an Order finding Defendant American
Airlines, Inc. (“American” or the “Defendant”) liable for
compensatory damages flowing from the crash of American
Airlines Flight 965 on December 20, 1995 in the mountains
near Cali, Colovabia. The passengers also ask the Court to
find that their compensatory damages are not capped by cer-
tain provisions of the Warsaw Convention, which limit an air
carrier’s liability except in cases of “willful misconduct.” The
cabin crew members, whose lawsuits do not implicate the
Convention, seek entry of an Order finding American liable
for negligence under Florida law.

The Plaintiffs’ motions are ripe for resolution, and this
Court took extensive argument on them during pre-trial hear-
ings on August 18, 19, 20 and 25, 1997. After an exhaustive

59a

review of the parties’ submissions, which include lengthy
memoranda and voluminous exhibits, the Court concludes that
the Plaintiffs are entitled to the relief that they seek. Simply
put, no reasonable jury could find that acts of the pilots of
Flight 965—and in particular the pilots’ decision to continue
their descent at night from a grievously off course position in
mountainous terrain—amounted to anything less than willful
misconduct, whether that term is construed to require an
objective or a subjective inquiry. Moreover, no reasonable
juror could find that the pilots’ conduct was not among the
proximate causes of the crash. We reach this conclusion with
considerable hesitance, mindful of the significance of the lit-
igation and the heavy burden that must be met before sum-
mary judgment may be entered in a Warsaw Convention case.
Nevertheless, even giving the Defendant every benefit of the
doubt, and drawing every reasonable inference in its favor,
the record cannot fairly be read to support any other result.
Accordingly, for the reasons detailed at length below, the
pending motions for summary judgment must be, and are,
GRANTED in their entirety.

I.

As noted above, this litigation arises out of the tragic crash
of American Airlines Flight 965 on the evening of December
20, 1995 as the plane attempted to navigate its arrival to the
Alfonso Bonilla Aragon airport at Cali. One hundred fifty-one
Passengers and the six members of the cabin crew died as a
result of the crash, with another four suffering non-fatal
injuries. The two cockpit pilots, Captain Nicholas Tafuri and
First Officer Donnie Ray Williams, also perished in the crash.
The initial lawsuit was filed on December 29, 1995. Since
then, almost 160 additional cases have been consolidated
before this division of the Southern District of Florida,
including a number of lawsuits that were filed in other federal
judicial districts, but subsequently transferred here by the
Judicial Panel on Multidistrict Litigation. A nine-member

60a

steering committee (the “PSC”) represents the Plaintiffs in
these consolidated cases with respect to liability issues. The
Defendants are American Airlines, Inc., the estates of the two
pilots and, in the six cabin crew Cases, American’s parent
corporation, AMR.' Honeywell, Inc., the manufacturer of
the flight management computer (“FMC”) used by the pilots
of Flight 965, and Jeppesen-Sanderson, Inc. (“Jeppesen”),
the manufacturer of certain materials used in conjunction with
the FMC. have been impleaded by American in several
recently-filed cases, although the Court has denied Ameri-
can’s motion to join these third parties in the other consoli-
dated lawsuits.

The parties agree that the claims of the passenger Plaintiffs
arise under what is commonly labeled the Warsaw Conven-
tion, an international treaty binding on the United States that,
by its terms, applies to “all international transportation of per-
sons, baggage, or goods performed by aircraft for hire.” See
49 Stat. 3000, reprinted at 49 U.S.C. § 40105. Article 17 of
the Convention, in the official English translation, states that
“(t]he carrier shall be liable for damage sustained in the event
of the death or wounding of a passenger or any other bodily
injury suffered by a passenger, if the accident which caused
the damage so sustained took place on board the aircraft or in
the course of any of the operations of embarking or disem-
barking.” At the time of this accident, Article 22. as modified,
limited American Airlines’ potential liability for compen-
satory damages flowing from the death or personal injury of
the passengers on Flight 965 to $75,000 per victim. Article
25, however, created an important caveat to this language by
explaining that “(t}he carrier shall not be entitled to avail

| On August 25, 1997, the Court granted AMR’s motion for sum-

mary judgment in these cases. The reasons underlying this ruling are
summarized in a separate Order. During the pre-trial conference, the PSC
indicated that the pilots’ estates eventually will be dismissed as Defen-
dants in most, if not all, of the consolidated lawsuits. The summary judg-
ment motions filed by the passengers and the crew do not seek this relief
against the estates.

61a

[it]self of the provisions of this convention which exclude or
limit [its] liability, if the damage is caused by [its] willful
misconduct.”

The PSC contends that many acts by the pilots of Flight
965 deviated so markedly from the standard of care, in the
face of so plain and obvious a danger, that a finding of will-
ful misconduct is inevitable. The Plaintiffs allege a large
number of subsidiary errors by the pilots, including flying the
plane at an excessive speed and leaving the speed brakes on
while attempting an abrupt ascent shortly before colliding
with the mountain, but focus primarily on four discrete acts.
First, and principally, the Plaintiffs assert that the pilots vio-
lated American Airlines policy and Federal Aviation Regu-
lations (“FAR’s”) by knowingly permitting Flight 965 to
descend after the plane veered far off the prescribed approach
path to the Cali airport. Second, the Plaintiffs contend that the
pilots violated American Airlines policy by knowingly devi-
ating from the flight plan and attempting a “short cut” into the
airport. Third, the Plaintiffs allege that the pilots violated
American Airlines policy by failing to verify that the identi-
fier for a waypoint on the route they elected to fly was correct
before entering it in the FMC. Finally, the Plaintiffs insist that
the pilots, once off course, violated American Airlines policy
by ignoring the instructions of the Colombian air traffic con-
troller (“ATC”) and attempting to bypass one of the required
waypoints. The PSC suggests that these acts, standing alone
or in the aggregate, demonstrate willful misconduct within the
meaning of the Convention.

American does not deny that the pilots made what it calls
“human mistakes.” Def. Resp., at 3. Indeed, it squarely
acknowledges at least two breaches of the applicable standard
of care and concedes that the accident was “an avoidable con-
trolled flight into terrain.” Pre-Trial Stipulation, August 13,
1997 (“PTS”), at § V 920. The Defendant maintains, however,
that a reasonable jury could find that the acts of the pilots did
not, individually or in the aggregate, amount to willful mis-
conduct. Moreover, according to American, even if the pilots

62a

did commit wrongful acts, a reasonable jury could find that
these acts did not proximately cause the crash of Flight 965.
Rather, the wrongful acts of Jeppesen, Honeywell and the
Colombian ATC’s superseded any misconduct by the pilots.
Cn the strength of these arguments, American contends that
it is not liable to the crew members on a theory of negligence,
aid the $75,000 limitation on damages in the passenger cases
should remain in place.”

II.

We begin by laying out the undisputed, material facts of
this litigation, pausing occasionally to identify some of the
parties’ points of disagreement. Although many of these facts
will be repeated and discussed in greater detail at subsequent
points in this Order, it is helpful to provide an initial
overview of the acts and omissions that both parties acknowl-
edge took place on the night of the accident. Unless otherwise
noted, the following facts have been proposed, stipulated to
or left uncontested by American Airlines.

Flight 965 left Miami International Airport on the afternoon
of December 20, 1995, bound for Cali, Colombia to the south.
The aircraft pushed back from the departure gate 34 minutes
late, and experienced an additional ground delay of one hour
and 21 minutes before departing. PTS, at § V 114. The airplane
used was a Boeing 757 which the parties acknowledge was
airworthy and in good mechanical and structural condition
when it left Miami. /d. at 130. In the cockpit were Captain
Tafuri, the pilot, and First Officer Williams, the co-pilot. /d.
at 931. Both Tafuri and Williams were Federal Aviation
Administration (“FAA”) licensed pilots, each with over 2200
total flight hours in Boeing 757’s or 767’s and extensive expe-
rience with American Airlines. /d. at 195-11, 15-16. Tafuri

. It is unclear whether American opposes the entry of summary
judgment in the passenger cases on the narrow question of its liability for
compensatory damages under Article 17 (as opposed to the question of
whether those damages should be limited by Article 25).

63a |

had flown 13 American Airlines flights as Captain to Cali
prior to December 20, 1995, and indeed, an American super-
visor carried out Tafuri’s annual international line check on
December 9, 1995—just eleven days before the accident—on
a flight from Miami to Cali. /d. at 99.14, 42. Williams had
never flown an American Airlines aircraft into Cali prior to
December 20th. /d. at 4 41. At all material times during
the flight, Williams was flying the aircraft and Tafuri was
primarily handling radio communications. /d. at 9 44.

Prior to their departure, Tafuri and Williams were given a
“dispatch package” which included a printed, computer-gen-
erated flight plan. The flight plan, among other things, called
for Flight 965 to follow a specified route during the arrival
and approach to the airport at Cali. The arrival phase is typ-
ically conducted in accordance with a specified STAR (Stan-
dard Terminal Arrival Route), which consists of a series of
waypoints or “fixes” in the terminal area defining the path
along which the aircraft must descend toward the airport.
These waypoints are often radio beacons of various types
known as navigation aids or “navaids.” Navaids may consist
of VOR’s (“VHF Omnidirectional Range” stations) or NDB’s
(non-directional beacons), both of which emit radio waves
that can be tuned in from the cockpit. By tuning radio
receivers to the specified frequency for a VOR, for example,
an aircraft’s pilots can determine the compass direction to and
in some instances the distance from the VOR in question.
These navaids can help pilots establish their position in the
sky as well as distances from point-to-point. Approaches, like
arrivals, are typically defined in terms of a series of way-
points, and are intended to guide the aircraft from the arrival
path onto the prescribed runway at the airport.

Flight 965 was equipped with a flight management com-
puter. In an aircraft without an FMC, pilots fly by relying on
“raw data”—specifically, the navigational information, such
as magnetic compass heading, speed and altitude, that is dis-
played on dials and gauges on the instrument panel. The
FMC, however, can be used to translate data received from

64a

navaids into a map-like pictorial view of the aircraft’s posi-
tion in the sky. This view appears on electronic horizontal sit-
uation indicator (“EHSI”) screens that are located opposite
each pilot on the cockpit’s main instrument panel. FMC inputs
are made on a device known as a CDU, which resembles a
calculator with a keypad and a small digital screen. Some or
all of a pre-programmed flight plan, or the approach and
arrival paths for particular airports, may be called up by the
pilots from the computer’s database simply by making certain
keystrokes on the CDU. In other words, if a pilot elects to fol-
low a particular STAR for an arrival, he need not type sepa-
rately all of the waypoints that make up that STAR; instead,
he may simply call-up the STAR by its identifier(s). Simi-
larly, all of the waypoints along a desired approach path may
be called up by typing the appropriate identifier. Once these
steps are taken, the computer can be instructed to fly the air-
craft automatically along the selected route (placing the plane
in “L-Nav” mode). Alternatively, the pilots can simply use the
EHSI screens for visual assistance while they manually fly the
aircraft by relying on raw data.

In this case, we are concerned principally with four way-
points defining the arrival and approach to the Cali airport.
These waypoints are, traveling north to south, the Tulua VOR
(identified as “ULQ”), the fix known as “D21 CLO,” the
Rozo NDB and the Cali VOR (identified as “CLO”). The Cali
VOR, located nine miles south of the airport, is the bench-
mark for the other waypoints. The Tulua VOR is located
43 miles to the north of the Cali VOR on a radial of 202°.’
The D21 CLO waypoint is located 21 miles to the north of the
Cali VOR on a radial of 193°. The Rozo NDB is located
roughly 12 miles to the north of the Cali VOR, on or slightly
offset from the same 193° radial. The strip of concrete on
which Flight 965 was expected to land at the airport is known
as Runway | when approached from the south and Runway 19
when approached from the north. The Cali airport is located

3

180° represents due north from the Cali VOR.

65a

in a valley approximately 43 miles long and 12 miles wide
and surrounded by high terrain. The arrival and approach
paths for aircraft landing at the airport are designed to keep
planes in an “airway” in the center of the valley.

American Airlines pilots flying into Central and South
America must receive special training intended to acquaint
them with the unique features of these regions. Among other
things, pilots are trained to keep in mind two critical precepts
when attempting to land airplanes in Latin America. First,
they are instructed, in no uncertain terms, not to rely on local
ATC’s for information about their location or position in the
Sky. For example, the July, 1995 Pilot Reference Guide for
Latin America, in a section titled “Warning! Arrivals May be
Hazardous,” makes the following points, all of which have
powerful significance in this litigation:

Controllers will clear you to descend below minimum
safe altitude in mountainous terrain. . . . The controller
will make assumptions that you must understand before
you learn it the hard way. The controller assumes that:

* You are on course;
* You are where you say you are;
* You know where the high terrain is:

* You will not accept a clearance that will take you
into the terrain.

If you do accept the clearance, the controller will con-
clude that all of the above are true.

PSC Mot., exh. 8, at 62-63 (emphasis in original). The Guide
goes on to emphasize that:

If the airport is in high terrain, you are best advised to
assume the controller will become distracted and allow
you to fly into a mountain. It has happened.

Never rely on terminal controllers to keep you
from hitting mountains! Do not trust them .

66a

Know exactly where you are and do not accept descent
instructions unless you know it is safe to do so.

Id. at 63 (emphasis in original).

The second critical precept American Airlines pilots are
trained to observe is a corollary of the first. Specifically,
pilots are warned of the dangers associated with flying into
Latin American airports, many of which, like that at Cali, are
located at high altitudes amid rugged mountainous terrain.
Consequently, it is literally, as the Guide makes clear in a sec-
tion entitled “Staying Alive,” a matter of life or death for
pilots to ensure that they are absolutely certain where they are
in the sky, and suspend any descent until they know where
they are:

There have been more major aircraft accidents in South
America than anywhere else. There are good reasons
for this. The most important factor, however, is you.
You must know what is going on and where you are.

It seems obvious to say that you must know where you
are at all times when operating in the southern divisions.
The reason for saying this is to emphasize that you must
be able to pinpoint your location on the enroute charts.
If you are not used to flying with the charts out and
open, then you must learn to do that down south because
of the notes on the charts. These notes often define pro-
cedures you won’t find anywhere else.

While knowing your enroute location can be critical,
knowing where you are in the terminal area, around the
dangerous high terrain airports of Central and South
America, can be vital. Most of the aircraft that have hit
the mountains did so because the crew apparently did not
know where they were. The tolerances get finer and finer
as you get into high mountains. For that reason, it is
essential to monitor and rely upon raw data from ground-
based Navaids, whenever you descend from altitude.

67a

Id. at 63, 71-72 (emphasis in original) In a section titled “Ter-
minal Procedures,” the Guide continues, in a passage with
significant implications here, that “[b]ecause of high terrain,
it is imperative when Operating in Central and South America
that you continually verify your exact location by every means
available.” Id. (emphasis added). In a section titled “Haz-
ards,” the Guide offers the following advice:

There are few areas of the world that are as potentially
dangerous to flight Operations as Central and South
America. The reasons include terrain, weather, ATC, run-
ways, and communications, but by far the most danger-
ous element in this environment is a flight crew that
lacks situational awareness. High mountains, bad
weather, and possibly poor or missed communication,
coupled with lack of planning, ignorance of the envi-
ronment and procedures, or inattention. are the ingredi-
ents for disaster.

It is not possible to Over-emphasize, nor to repeat too
often, the warnings and rules you will find in this chap-
ter. If you fail to heed them, if you arrive in the terminal
area listless after a long night of quiet tedium and fail to
prepare for the approach, fail to rouse your energy and
concentration, you and all the people in your charge may
join the long list of wasted lives and wreckage that have
littered the high slopes of the Andes.

/d. at 77 (emphasis in original). A section entitled “Knowing
the Altitude of the Terrain Below” emphasizes that pilots, in
order to be sure where they are, must rely on more than the
EHSI map, and therefore must “(t]ake the time to study the
several ways in which terrain elevation is depicted on the
enroute charts and arrival/departure plates.” /d. In short,
pilots are required to “/e]xamine the charts and plates to
locate your position; cross-check every available indication
and know where you are before you accept a descent.” Id. at
79-80 (emphasis added).

68a

These precepts are summarized in a series of rules for pilots
flying into Latin America. The rules appear under the head-
ing “Situational Awareness: A Working Definition.”

Situational awareness implies an alert active assessment
of the aircraft’s position relative to terrain, other aircraft,
and the airport. . . . [NJowhere is it more of a require-
ment than in the vicinity of the high terrain airports of
Central and South America.

The natural instinct to employ the rules that follow is the
mark of a pilot who has situational awareness. Situa-
tional awareness may become second nature after years
of experience and training, but it can also be acquired
through personal discipline, motivation, and a willing-
ness to learn from the mistakes of others.

The challenge to those who devise and present training
to the American Airlines crews who will fly into Latin
America has been to shatter the complacency that comes
with years of experience flying in a predictable envi-
ronment. With that in view we offer this warning in
the form of a rule, when flying into Central and South
America:

Rule 1: You must take responsibility for your own sur-
vival!

In Latin America, the relationship between the ATC con-
troller and the flight crew is different from that in the
US. It is different in this way: US controllers have rigid
guidelines for descent and vectoring clearance, separa-
tion standards, communications protocols, complete
coordination between adjacent control functions, and
superb equipment. They have a directive role which we
have come to accept without question.

In contrast, the attitude of the Central and South Amer-
ican controller is much less directive. This is a subtle but
vital philosophical difference you must grasp, because it

69a

can save your life. Controllers in Latin countries have a
role that is more in the nature of a coordinator, negotia-
tor, or facilitator than US controllers. In the US, we
respond to the instructions of the controller with confi-
dence that we will have terrain and traffic separation,
that there is a clear plan for our sequence to the final
approach. We request deviations as we think necessary,
but normally not. We entrust Ourselves to the person in
front of the scope.

But the Latin American terminal controller may not even
see you on a scope. If radar is available, high mountains
between you and the destination airport may prevent
contact. So when the controller issues a clearance for
descent, it will normally be based upon the controller's
assumption that you are taking charge of your own ter-
rain separation. The burden rests squarely upon you.

Even the routing is really in your own hands. The con-
troller is used to dealing with crews who have made hun-
dreds of approaches into the area and know where every
high point is. The controller, in an effort to expedite your
approach (as a courtesy or sometimes to optimize
sequencing), may clear you direct to a fix over high
intervening terrain. A red flag should go up if you are
given a clearance direct in terminal areas with high ter-
rain. You should accept an abbreviated procedure only if
you really know where you are, and what’s below you,
it’s VFR [visual flight rules, as Opposed to instrument
flight rules (“IFR”), which Flight 965 was following],
and the sun is shining. Whenever this is not the case, fol-
low this next rule:

Rule 2: Insist on the complete published approach/
departure, unless you know exactly where you are and
what's below you!

Is it really possible that a controller will issue a descent
to an altitude below the MEA {minimum enroute alti-

70a

tude], AMA [area minimum altitude], MORA [minimum
off-route altitude], or MSA [minimum safe altitude]?
Yes. it is done routinely. If you'll examine some of the
approaches into airports surrounded by high terrain, you
will see that if you don't descend below these guideline
altitudes, in some cases, you won't be able to make the
approach. The trick is to remember the first rule: You
must take responsibility for your own survival! That
brings us to the next rule:

Rule 3: Do not descend unless you know exactly
where you are and the safe minimum altitude.

There are two parts to this rule: knowing where you are
and knowing the safe minimum altitude. The two issues
are entwined. You can determine terrain elevation below
you only if you know where you are.

Id. at 77-79 (emphasis in original) (boldface added).

In a post-accident document that succinctly reiterates pre-
accident training, the Defendant reminded its pilots of the fol-
lowing points:

¢ “[CJontinually verify [your] exact position by every
means available [when flying in Latin America]”

* “Assume nothing. When clearances are received,
check the MEA prior to descending. Always have an
enroute chart open to the correct area being flown.”

* “Know where you are; know where you are going;
and know how to get there.”

¢« “You will be operating in an antiquated ATC envi-
ronment. with usually little or no radar contact (Circa
1940’s). You are the Captain, with much more
responsibility than at any time in your career.
Remember, it’s your license and your life. Guard
both!”

Tla

* “Constant Awareness of Position. The only safe place
to descend below the MEA, MOCA [minimum
obstruction clearance altitude], etc. is in a published
holding pattern. You must use it to assure adequate
terrain clearance at or above the MEA.”

* “Do not request or accept direct clearances which
result in off-airway flying.”

* “You must know the MEA versus your present posi-
tion.”

* “Terminal Area Charts [] depict holding patterns
along published routes that must be used for any
unplanned maneuvering in the terminal area. They
must be flown exactly as depicted.”

¢ “Prior study [of arrivals and approach charts] is
essential. You cannot wait until you get there.”

* “Be aware of the MEA at all points on the approach
and missed approach.”

* “The Captain [must] thoroughly brief each departure,
arrival and landing, regardless of weather, with par-
ticular attention to obstacle clearance and terrain.
Appropriate area charts depicting terrain and
approach charts will be used in this briefing during
the approach.”

¢ “It is totally the pilot’s responsibility to avoid ter-
rain.”

“If there is any question as to position, do not
descend.”

Id. exh. 17 (emphasis added).* There is no dispute that Tafuri
and Williams knew about, and had been trained to observe in

‘ This document was prepared two months after the accident.

American does not dispute that most of the provisos contained in it were
taught to pilots prior to December, 1995. See PSC Mot., exh. 18.
Rauhofer dep., at 74-82. The Defendant contends, however, that it is

72a

most if not all situations, these principles, which undoubtedly
make the mistakes that occurred during the final minutes of
Flight 965 more patent, and far more egregious, than they
might otherwise be.

A great deal of our understanding of what unfolded during
the final minutes of Flight 965 is based on the cockpit voice
recorder (“CVR”), which recorded the

[Text truncated at 120,000 characters. The full text is on the page linked above.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0411%3A1. Public record. Not legal advice.