Petition for Writ of Certiorari — Grimes v. Northwest Airlines, Inc.

Uy, Supreme Court, U.S.

- FILED

No.00- QO 9434 AUG 1-200

IN THE QFFICE OF THE CLERK

Supreme Court of the United States

CHARLES L. GRIMES and JANE GILLESPIE GRIMES,

Petitioners,

V.

NORTHWEST AIRLINES, INC.,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Third Circuit

PETITION FOR WRIT OF CERTIORARI

THADDEUS HOLT

Counsel of Record

P.O. Box 440

Of Counsel: Point Clear, Alabama 36564

(334) 990-8750

pape Ba 2 Attorney for Petitioner

KITTREDGE, DONLEY, ELSON,

FULLEM & EMBICK

The Bank Building

421 Chestnut Street

Philadelphia, PA 19106

(215) 219-1900

August 1, 2000

PRESS OF BYRON S. ADAMS # WASHINGTON, D.C. # 1-800-347-8208

i

QUESTIONS PRESENTED

The Warsaw Convention, the treaty concerning

actions against airlines by international passengers, deals

in Article 17 with “accidents,” and in Article 25 with

airlines’ “willful misconduct.”

l. In Air France v. Saks, 470 U.S. 392, 404-406 (1985),

this Court defined an “accident” under Article 17 as “an

unexpected or unusual event or happening that is

external to the passenger,” admonishing that “this

definition should be flexibly applied after assessment of

all the circumstances surrounding a passenger's injuries,”

that it “requires only that the passenger be able to prove

that some link in the chain was an unusual or

unexpected event external to the passenger,” and that it

is “for the trier of fact to determine whether an

‘accident’ as here defined caused the passenger's

injuries.”

The “event or happening” giving rise to this suit was

the arrest and forcible removal of a passenger sitting

quietly in the seat to which he had concededly been

assigned. Did the court below violate Saks by holding

that there was no “accident,” based on its own stated

view that the broad overall general category of

“confusion about seat assignments” and “removal of

bumptious [sic] passengers” was not “unexpected or

unusual,” without analyzing the elements of the specific

occurrence or referring to the (clearly contrary)

evidence of record?

This perception of the Saks requirements by the

court below is inconsistent with a recent dictum of this

Court in El Al Israel Airlines, Lid. v. Tseng, 119 S. Ct.

662, 670 n9 (1999), and with the Eleventh Circuit's

ii

decision in Krys v.Lufthansa German Airlines, 119 F.3d

1515 (11th Cir. 1997), cert. denied, 522 USS. 1111 (1998).

29. Under the applicable version of Article 25, a

carrier “shall not be entitled to avail himself of the

provisions of this convention which exclude or limit his

liability, if the damage is caused by his willful

misconduct ....” Did the court below err in holding that

Article 25 applies only when there is an “accident” under

Article 17?

teed tone ace a a I OAM PO Ee ge eA

PARTIES TO THE PROCEEDING

The caption of the case contains the names of all the

parties.

ial la

iv

TABLE OF CONTENTS

Page

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Parties 00 the Proietti .accsisssnsiecieverecisiancintinecerennttininmnaen iii

De OE COE, a ciinissihicircinnccaenitininmanaicdianiiaieennaai iv

pine TI iis: iiinisiincinsinnlitiicaianiapieieibiiindabiaaaihaniisisaimigil vi

Petition for Writ Of CertiOrard .......c.ccccsccccscscccsssecccsscccsseoesees l

E-PRINT sees cisicsesienncsnetccntcnseninseninnsnennininicnrnmnsannnionn l

A. Reports of Opinions and Orders in the Case .. 1

B. Basis for Jurisdiction in This Court .................. 2

C. Treaties Involved in the Case .......... eee 2

FE Bern OE Ti Ga cecnitctccterncti ction 3

Il. Reasons for Allowance of the WYit .............c cee 7

A. The Case Involves Issues of Substantial

General Importance Affecting Millions of

International Air Passengers ...........sscsssseseseees 7

B. The Decision Below Misperceives This

Court’s Decision and Admonitions in Air

France v. Saks, 470 U.S. 392 (1985), and Is

Inconsistent With a Recent Dictum of This

Court and With a Decision of the Eleventh

CSTE... cctoinstsstiesnnnisoenbeniegunvenananesmiaieaial Sean 8

C. The Decision Below Rests on a Principle

of Treaty Construction Which This Court

at CI ois ieseissianiiviinitanenininciinnniiieh iain 12

Ceemnatialatits ....,. nnssiisnicisnitisistittapalaiidibiateigs tbeiiniipeniaiaiianiaianilieaaiie 15

oD

G.

Page

Appendix

NRT LAIN A TTT EE la

PU IID asia cciicsitedheiheticiicig Te 6a

Opinion and Order of the District Court on

i EE ALLO 8a

Opinion and Order of the District Court on

LF ae ee eR eee ee l6a

Order of District Court Adopting Magistrate

Judge’s Report and Recommendation ..............0... 19a

Report and Recommendation of Magistrate

Judge on Punitive Damages ........ccccccsscssscseessessseeees 20a

The Warsaw Convention .0........ccccsccssscssessessesssesessseeees 25a

Page(s)

CASES:

Air France V. Saks, 470 U.S. 392 wsesssssssssessssssssesneesen passim

Chan v. Korean Air Lines, Lid., 490 US. 122 (1989) ..... 14

Eastern Airlines, Inc. v. Floyd, 499 U.S. 530 (1991) ........ 3

El Al Israel Airlines, Lid. v. Tseng, 119 S. Ct. 662

(1999) ..ssssssssssscccssnnnnsunssssssssssnnnnsnsnnnnnnsssssssss¢ssss 3, 7, 9-11, 15

Floyd v. Eastern Airlines, 872 F.2d 1462 (11th Cir.

1989), rev'd on other grounds, 499 U.S. 530

(UBL) sacessssseensecsorenneeccnnnosnnsornnesonnnncnennerenunnecgenunnnnnnesee 14

In re Korean Air Lines Disaster of September 1,

1983, 932 F.2d 1475 (D.C. Cir. RODD) ..rescescreresrcrscenonanees 14

Krys v. Lufthansa German Airlines, 119 F.3d 1515

(11th Cir. 1997), cert. denied, 522 U.S. 1111 (1998) ... 11

Langadinos V. American Airlines, Inc., 199 F.3d 68

(Ist Cirr. 2000) ....ecsssssssessesssseessnseenenessnnnnenecgnnrnnnnnnnnnnnnnnnt 11

Oliver v. Scandinavian Airlines System, 17 CCH

AV. CAS. 18,283 (Md. 1983) ......-sssssessssssesssessnnesnnessnnennenens ll

Wallace v. Korean Air, 2000 WL 730385 (2d Cir. June

6, 2000) sassseseesscsccennssssssnsnsnsnsnnnnnnnnnnnnnsnnnnnnssssssssssosssets 9,12, 15

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

(1906) scsosssssssscsnsssessscesenssnnsnnnnnnssssooconennnnassssconnnnvscoqensses 3

STATUTES:

DB U.S.C. § L25A(L) ovesssssssesssssssessssnncnnnnesennnnssssnnnesennnnnsoznnncnnnens¢s 2

DR U.S.C. § VSBD anvsscovssssnscsesnsvesecsnnnnnoncenneccnnnnsoonnncccnnnsccunscanocensees 3

DB U.S.C. § LSB oaccsssssscssssssccssnsnsssssoonecssennsssensnnnsccsnnnssccnnnsnqonseens 3

el

vii

Authorities Cited continued

Page(s)

TREATIES:

Convention for the Unification of Certain Rules

Relating to International Transportation by Air,

October 12, 1929 (“the Warsaw Convention”), 49

STAT. 3000, T.S. No. 876 (1934), note following

GU. Aire © IUD cevevscvencssvenvisccesersinensscennnennee passim

Montreal Protocol No. 4 To Amend the Convention

for the Unification of Certain Rules Relating to

International carriage by Air, Signed at Warsaw

on 12 October 1929, as Amended by the Protocol

Done at the Hague of 28 September 1955, Signed

at Montreal on 25 September 1975 (effective in

the United States from March 4, 1999) ............+000 snl

ARTICLES:

Whalen, Thomas J., Update on the IATA

Intercarrier Agreement, 13-Fall AIR & SPACE

IE TED cceuesshenmceinnseninamnennilasesdeeneniinietanninvwcsastienviin 13 n..5

OTHER MATERIALS: e

Agreement Relating to Liability Limitations of the

Warsaw Convention and the Hague Protocol,

CAB Agreement 18900, approved by Order E-

23680, May 13, 1966, 31 FED. REG. 7302 (1966), note

following 49 U.S.C. App. § 1502 .......cscsscseseseeenenees 13 n.5

CHART #1 FORECAST OF INTERNATIONAL TRAVEL TO THE

UNITED STATES (ESTIMATES IN THOUSANDS) ,

WWW.UUNCLIA.dOC.BOV ...ccccccorscsssecsscerenccsersceoesvececsessseceees 7

Authorities Cited continued

Page(s)

U.S. INTERNATIONAL AIR PASSENGER AND FREIGHT

STATISTICS CALENDAR YEAR 1994,

www.bts.gov/oai/international/calyr94.htm

IN THE

Supreme Court of the United States

CHARLES L. GRIMES and JANE GILLESPIE GRIMES,

Petitioners,

V.

NORTHWEST AIRLINES, INC.,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Third Circuit

PETITION FOR WRIT OF CERTIORARI

Charles L. Grimes (“Grimes”) and Jane Gillespie

Grimes (“Jane Grimes”) (collectively “the Grimeses”)

respectfully petition for a writ of certiorari to the United

States Court of Appeals for the Third Circuit.

L Preliminary

A. Reports of Opinions and Orders in the Case

The opinion of the court below is unreported. It is

reproduced in the Appendix at la-7a. Opinions of the

court of first instance, the United States District Court

for the Eastern District of Pennsylvania, are reported at

1989 WL 562244 (E.D.Pa.) (reproduced at 8a-15a) and 1999

WL 527831 (E.D.Pa.) (reproduced at 16a-18a).

2

B. Basis for Jurisdiction in This Court

The judgment of the court below was entered on

May 4, 2000. 6a-7a. This Court has jurisdiction to review

the judgment in question on a writ of certiorari under 28

U.S.C § 1254(1).

C. Treaties Involved in the Case

Convention for the Unification of Certain Rules

Relating to International Transportation by Air, October

12, 1929 (“the Warsaw Convention”), 49 STAT. 3000, T.S.

No. 876 (1934), note following 49 U.S.C. App. § 1502:

Article 17

The carrier shall be liable for damage sustained in

the event of the death or wounding of a passenger or

any other bodily injury suffered by a passenger, if the

accident which caused the damage so sustained took

place on board the aircraft or in the course of any of the

operations of embarking or disembarking.

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 willful

misconduct or by such default on his part as, in

accordance with the law of the court to which the case

is submitted, is considered to be equivalent to willful

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.

3

The full text of the Convention will be found in the

Appendix at 25a-4la.*

II. Statement of the Case

1. The court of first instance was the United States

District Court for the Eastern District of Pennsylvania.

That court had jurisdiction under 28 U.S.C. § 1332

(diversity of citizenship) and/or 28 U.S.C. § 1331 (actions

arising under treaties of the United States).

2. Over the past 15 years this Court has decided a

series of cases that clarify application of the Warsaw

Convention, including Air France v. Saks, 470 U.S. 392

(1985) (definition of “accident” under Article 17); Eastern

Airlines, Inc. v. Floyd, 499 U.S. 530 (1991) (no recovery

under Article 17 solely for mental or psychic injuries

absent bodily injury); Zicherman v. Korean Air Lines

Co., 516 U.S. 217 (1996) (cognizability of harm under

Article 17 is determined by domestic law); and El Al

Israel Airlines, Lid. v. Tseng, 119 S. Ct. 662 (1999)

(ousting of state law remedies by Article 17). This case

presents issues that were discussed last year in El Al but

could not there be decided because of stipulations by

the parties, viz., application of the Saks definition of

“accident,” and the relationship between Article 17 and

Article 25. ,

3. On August 13, 1998, the Grimeses were passengers

on an international flight of the respondent Northwest

‘The quoted text of Article 25 was in effect as of the date of

the occurrence giving rise to this suit, August 13, 1998. Article 25 was

subsequently amended by Montreal Protocol No. 4, effective in the

United States from March 4, 1999. Its text appears at 42a.

4

Airlines from Detroit to Philadelphia.” Well in advance

of the flight, Grimes, who was 63 years old, advised

Northwest that he had a physical need for maximum

legroom and requested a seat on an exit row. Such a

seat reservation was duly issued to him and was

reconfirmed. He arrived early for the flight departure,

and Northwest personnel checked and verified his seat

assignment and duly seated him.

Another passenger then arrived, saying that she had

been issued a reservation for the same seat. She did not

press the issue, however, and quietly took another seat,

one of many empty seats on the plane. However, a

truculent and belligerent employee of Northwest, one

Leone, nevertheless demanded that Grimes get off the

plane. He declined to do so. Leone became enraged,

snatched Grimes’s boarding pass, and made other

offensive moves, including physical contact. When

Grimes still declined to leave the airplane, the airport

police, at the instigation and direction of Leone and the

captain of the aircraft (whose information about the

matter was limited solely to whatever Leone told him),

arrested Grimes and removed him from the plane.

Though they had been advised of his physical

problems, the police yanked at Grimes’s arms while he

was still belted in his seat, injuring him in front of Leone,

other passengers, and his wife. They jerked him out of

his seat in handcuffs, slammed him against the gangway

wall, twisted his arm up behind his back, tried to throw

him on the floor, and threatened him with pepper spray.

* The flight was from Vancouver, B.C., to Philadelphia, with

an overnight layover and change of planes in Detroit; the incidents in

question took place in the Detroit airport in the boarding process for

the Detroit-Philadelphia leg. This qualifies as an international flight

under the Warsaw Convention.

alates

5

He sustained bruises and nerve damage to both wrists, a

badly sprained right ankle, and injuries to his left ankle,

neck, right shoulder, and right arm; and was unable to

travel on his regular business for an extended period.

4. The Grimeses brought suit against Northwest in

the United States District Court for the Eastern District

of Pennsylvania, setting forth claims for personal injuries

resulting from, inter alia, false imprisonment, assault,

defamation, and intentional infliction of emotional

distress. Compensatory and punitive damages were

claimed. Trial by jury was demanded.

5. On deposition, the captain of the plane and two

flight attendants testified that removal of a passenger

was a rare occurrence. The captain, a veteran pilot,

testified that he had had occasion to order removal of a

person from an aircraft only seven times in his 28 years’

experience. APP0800, APP0864.° Neither flight attendant,

with eight and six years’ experience respectively, had

ever witnessed the removal of a passenger from an

airplane. APP1193-4, APP1291.

On deposition, the arresting detective sergeant

testified that Grimes’s demeanor was “matter of fact”

rather than bumptious. “[NJothing overly aggressively

loud. Just a matter of fact, nope, I'm not going.”

APP0347, APP0388.

6. The district court dismissed the claim for punitive

damages, holding that the action was one under the

Warsaw Convention and that punitive damages are not-

awarded in such actions. 19a-24a. It granted a motion in

limine precluding, as speculative, any offer of evidence

as to Grimes's financial losses resulting from his inability

* “APP” citationsare to the Joint Appendix in the court below.

6

to travel by reason of- his injuries. 16a-18a. Finally, it

granted a motion for summary judgment in Northwest's

favor. 8a-15a.

In granting summary judgment, the district court

held, first, that the Grimeses could sue only under the

Warsaw Convention and not under state law. It held,

second, that only Article 17 of the Convention was

implicated and not Article 25, on the ground that there

was no evidence that Northwest’s employees had

committed willful misconduct (thus disregarding

whether the jury could have inferred such an intent from

the evidence). Third, it dismissed Jane Grimes’s claim

for emotional injuries on the ground that compensation

for such injuries cannot be recovered under Article 17.

Fourth, it held that Grimes’s injuries were not caused by

an “accident” under the Warsaw Convention. Evidently

considering that the injuries were caused by “an

argument over seating” rather than by the belligerent

behavior of the airline personnel and the police, it held-

that “an argument over seating is neither unexpected nor

unusual,” and that the injuries Grimes suffered were his

own fault because “it was entirely within Grimes’s control

whether he was arrested.” 12a-l5a.

7. On appeal, the Third Circuit did not address or

follow this last reasoning. Instead, it simply said that the

injuries complained of “did not come about as the result

of an ‘accident,’ as that term is used in the Warsaw

Gonvention,” because “confusion about seat assignments

is hardly unexpected or unusual. Nor is the removal of

bumptious passengers from planes.” Hence, there was

no liability under Article 17. 4a. As for Article 25, it held

that “(o]nly after one has established that an accident

occurred can one attempt to demonstrate that the

accident came about as a result of willful misconduct, in

7

which case one can benefit from the provisions of

Article 25.” 4a n.3. It accordingly did not address Article

25 further, simply saying generally that “{a]s Mr. and Mrs.

Grimes are barred from recovering at all under the

Warsaw Convention, we do not need to reach the

question of whether the District Court was correct to

bar Mr. and Mrs. Grimes from seeking emotional

damages and consequential damages under their

claims.” 5a.

Il. Reasons for Allowance of the Writ

A. The Case Involves Issues of Substantial

General Importance Affecting Millions of

International Air Passengers.

With exceptions under Article 25 discussed infra,

the Warsaw Convention preempts state law actions by

international passengers against air carriers, so that all

such actions must be brought under the Convention, El

Al Israel Airlines, Lid. v. Tseng, 119 S. Ct. 662 (1999); and

the Convention generally provides for less redress to

passengers than would actions under state law. Huge

numbers of people are affected. In 1994, the most recent

year for which the Department of Transportation has

published figures, nearly 97 million passengers traveled

by air between the United States and the rest of the

world. U.S. INTERNATIONAL AIR PASSENGER AND FREIGHT

STATISTICS CALENDAR YEAR 1994,

www.bts.gov/oai/international/calyr94.htm. The

Commerce Department forecasts nearly 26 million

visitors to the United States from overseas for 2000 and

over 30 million for 2008, CHART #1 FORECAST OF

INTERNATIONAL TRAVEL TO THE UNITED STATES (ESTIMATES

IN THOUSANDS), www.tinet.ita.doc.gov, almost all of

whom will travel by air. And in the jet era, not only

traditional ports of entry like New York and San

8

Francisco, but inland cities like Atlanta and Denver, have

become international gateways; moreover, under the

expansive definition of an “international” flight under the

Convention, a through ticket to any point in the United

States that originates or passes through a foreign

country is subject to the Convention, even if the relevant

leg of the journey is a wholly domestic flight.

Also implicated is fairness as between international

and domestic passengers. Again because of the

expansive definition of an “international” flight under the

Convention, oftentimes one passenger will be caught by

the restrictions of the Convention when another ~

passenger on the same plane is not. The Detroit-to-

Philadelphia flight in this very case was a domestic

flight in every real sense. Yet because they happened to

be traveling on a through ticket originating in Canada,

the Grimeses came under the Convention — while a

passenger in the adjacent seat subjected to the same

treatment could have had full redress under state law.

National — indeed, international — uniformity and

clarity in the handling of claims under the Convention,

both for “accidents” under Article 17 and for “willful

misconduct” under Article 25, is thus a matter of major

public importance.

B. The Decision Below Misperceives This Court’s

Decision and Admonitions in Air France v.

Saks, 470 U.S. 392 (1985), and Is Inconsistent

With a Recent Dictum of This Court and With

a Decision of the Eleventh Circuit.

In Air France v. Saks, 470 U.S. 392, 405 (1985), this

Court defined an “accident” under Article 17 as “an

unexpected or unusual event or happening that is

external to the passenger.” Of cardinal importance was

9

what the Court said about the application of ‘ts

definition. “This definition,” it said, “should be Slexibly

appited after assessment of all the circumstances

surrounding a passenger’s injuries." 470 U.S. at 404-405

(emphasis added). “[W]e require only that the passenger

be able to prove that some link in the chain was an

unusual or unexpected event external to the passenger.”

470 U.S. at 406 (emphasis added). And “{ijn cases where

there is contradictory evidence, it is for the trier o f fact

to determine whether an ‘accident’ as here defined

caused the passenger’s injuries.” 470 U.S. at 405

(emphasis added).

The Second Circuit noted very recently that “courts

have wrestled with the Saks definition of ‘accident’ since

it was announced.” Wallace v. Korean Air, 2000 WL

730385 at *5 (2d Cir. June 6, 2000). This case affords an

opportunity to clarify matters.

Such an opportunity seemed to be afforded last

year in El Al, supra, but was frustrated by stipulations of

the parties when the case reached this Court. That was

an action by a passenger who claimed to have been

subjected to an improper physical search. Directly

relevant to the present case was the question,

considered by both the district court and the Second

Circuit, whether the search of the passenger was an

“accident.” The district court had held that it was,

expressly “[u]sing the flexible application prescribed by

the Supreme Court” in Saks, 119 S. Ct. at 670 n9, and

concluding: “[A] routine search applied erroneously to

plaintiff in the course of embarking on the aircraft, is

fairly accurately characterized as an accident.” Jbid. But

the Second Circuit disagreed. Rather than “assessfing ]

all the circumstances surrounding [the] passenger’s

injuries,” as instructed by Saks, and analyzing the event

10

by its constituent elements, it addressed only the event’s

overall category — and at a high level of abstraction.

Security searches, it said, are “routine.” “The risk of

mistakes, 7.¢., that innocent persons will be erroneously

searched,” is “fiJnherent in any effort to detect

malefactors.” Therefore, it reasoned, what the passenger

had been subjected to was not “an unexpected or

unusual event” but “ordinary events and procedures of

air travel.” Jbid.

This Court clearly regarded the Second Circuit’s

approach as faulty. “It is questionable,” said Justice

Ginsburg for the Court, “whether the Court of Appeals

flexibly applied’ the definition of ‘accident’ we set forth

in Saks.” Ibid. But the opportunity to clarify the

application of Saks was forestalled in El Al by the fact

that the plaintiff chose to stipulate in this Court that the

matter in suit had not been an “accident” within the

meaning of Article 17. 119 S. Ct. at 667, 670 n.9.*

That opportunity is presented now. The court below

performed essentially the same high-level abstraction as

did the Second Circuit in £7 Al. Rather than “assess[ing]

all the circumstances surrounding a passenger’s injuries,”

as directed by Saks, and “flexibly” analyzing the event

sued on in that light to ascertain whether “some link in

the chain was an unusual or unexpected event external

to the passenger,” it simply declared (evidently as a

matter of judicial notice, and in direct contradiction to

the evidence) that the general categories “confusion

over seat assignments” and “removal of bumptious [sic]

* Thisleft as the issue before this Court the question whether

“a passenger whose injury is not compensable under the Convention

(because it entails no ‘bodily injury’ or was not the result of an

‘accident’)” has any recourse to an alternate remedy; the Court

answered in the negative. 119 S. Ct. at 668. |

1]

passengers” was “hardly unexpected or unusual,”

without even addressing testimony as to the demeanor

of the passenger, the behavior of Leone, the brutality of

the police, or any connection between the two; just as

the Second Circuit in El Al simply declared the general

category of “security searches” to be “routine,” and

shrugged off the wrongful behavior of the airline in the

specific case of its security search of the plaintiff there,

on the ground that “mistakes” will happen.

As the Court implicitly recognized in El Al, this

approach makes a mockery of the guidelines so

carefully laid down in Saks. Almost any event can be

subsumed under some general “routine” category at a

high level of abstraction and shrugged off with

“mistakes will happen.” As but one example, it is

“routine” to serve alcoholic beverages in flight, and

mistakes may happen and somebody be served too

much; but injury caused by such a drunken passenger is

caused by an “accident” for Article 17 purposes.

Langadinos v. American Airlines, Inc., 199 F.3d 68 (1st

Cir. 2000); Oliver v. Scandinavian Airlines System, 17

CCH Av. Cas. 18,283 (Md. 1983), cited with approval in

Saks, 470 U.S. at 405.

At least two other courts of appeal have taken a

view more in harmony with Saks. The Eleventh Circuit,

in Krys v. Lufthansa German Airlines, 119 F.3d 1515

(11th Cir. 1997), cert. denied, 522 US. 1111 (1998), was

explicit that the proper approach is not to look at some

high-level overarching generalization such as, in that

case, “crew negligence,” but rather to analyze the

“purely factual description of the events” giving rise to

the action, “asking what precise event or events

allegedly caused the damage sustained by the plaintiff.”

Id. at 1521-22 and n.10. Here, the “precise event” was not

12

some vague “dispute over seat assignments,” but the

brutal ejection of plaintiff not only from the seat which

he had been assigned and to which he had been

directed, but from the airplane itself. In a very recent

case, the Second Circuit — having evidently taken to

heart this Court’s observations as to its treatment of the

“accident” issue in El Al — similarly engaged in a

detailed analysis of the facts in determining that the

sexual groping of a female passenger by a male

passenger, without interference by the airline crew, was

an Article 17 “accident.” Wallace v. Korean Air, 2000 WL

730385 at *6-*7 (June 6, 2000).

Finally, over and above these broadly applicable

considerations, in this case the court below failed to

observe the Saks admonition that “{iJIn cases where

there is contradictory evidence, it is for the trier of fact

to determine whether an ‘accident’ as here defined

caused the passenger’s injuries.” 470 U.S. at 405. It is

impossible to square with this admonition the ipse dizxit -

of the court below that the cause of petitioners’ injuries

was “hardly unexpected or unusual,” when the

testimony of two experienced flight attendants and the

veteran captain of the aircraft was directly to the

contrary. It is impossible to square with this admonition

the reference by the court below to “bumptious

passengers,” when the very arresting detective sergeant

himself testified that Grimes’s demeanor was “matter of

fact.”

C. The Decision Below Rests on a Principle of

Treaty Construction Which This Court Has

Condemned.

Likewise of broad general importance is the

interrelationship between determination of an “accident”

under Article 17 and “willful misconduct” under Article

13

25. The court below, as noted, held that Article 25, in its

form applicable to the present case, “merely removes

the limits on recovery created by other provisions of the

Convention” — ie., the cap on quantum of damages in

Article 22° — so that “[o]nly after one establishes that an

accident occurred can one attempt to demonstrate that

the accident came about as a result of willful

misconduct, in which case one can benefit from the

provisions of Article 25.” 4a n3.

The implications of this interpretation are grotesque.

Under it, for example, an airline that willfully inflicted

bodily injury on its passengers as a matter of routine

would escape liability, because there would be no

“accident” since the behavior was not “unexpected or

unusual.” An airline could willfully defame passengers

or otherwise inflict mental or emotional injury on them

with impunity, because there is no liability for such

injury in the case of “accidents” under Article 17.

But that is not what the applicable version of Article

25 says. It says that in cases of willful misconduct, “[t]he

carrier shall not be entitled to avail himself of the

provisions of this convention which [a] exclude or [b]

° Article 22 sets an upper limit'on the quantum of a carrier’s

liability. In the Convention itself, this limit is 125,000 gold francs.

Carriers have voluntarily waived this limit in part or in whole and

subject to certain conditions, by the so-called “Montreal Agreement”

(not to be confused with “Montreal Protocol No. 4”), Agreement

Relating to Liability Limitations of the Warsaw Convention and the

Hague Protocol, CAB Agreement 18900, approved by Order E-23680,

May 13, 1966, 31 FED. REG. 7302 (1966), note following 49 U.S.C.App.

§ 1502; 14 C.F.R. § 203.4, and the IATA Intercarrier Agreement on

Passenger Liability (1995), to be implemented pursuant to the IATA

Agreement on Measures to Implement the IATA Intercarrier

Agreement (1996). See Thomas J. Whalen, Update on the IATA

Intercarrier Agreement, 13-Fall AIR & SPACE LAW. 1 (1998).

14

limit his liability.” (Emphasis and “{a}” and “[b]” added.)

The court below read this as if the words “exclude or”

did not appear. But the language is absolutely plain. If

there is no “accident” or bodily injury, under Saks and El

Al the Convention excludes liability. But under Article

25, the carrier cannot take advantage of this exclusion in

the event of willful misconduct; the exclusion ceases to

apply and the carrier’s liability is governed by state law.

If there is an “accident,” Article 22 sets a quantum limit

on liability. But under Article 25, the carrier cannot take

advantage of this limit in the event of willful misconduct;

Article 22 ceases to apply and the carrier’s liability is

unlimited. That is the indisputable plain meaning of

these words. There is no ambiguity whatever in them.

The court below made no independent analysis and

simply relied on two older cases for the proposition that

Article 25 does not mean what it says. In re Korean Air

Lines Disaster of September 1, 1983, 982 F.2d 1475

(D.C. Cir. 1991); Floyd v. Eastern Airlines, 872 F.2d 1462

(11th Cir. 1989), rev'd on other grounds, 499 U.S. 530

(1991). Both these cases relied on negotiating materials

and drafting history. 932 F.2d at 1484-90; 872 F.2d at 1483-

89. Whatever may be the principles of treaty

construction where there is ambiguity (such as in

determining the meaning of “accident” or “willful

misconduct,” or of some technical French law term in

the original French of the Convention), there is no room

for resort to such materials to gloss unambiguous

language. Chan v. Korean Air Lines, Ltd., 490 U.S. 122,

134 (1989) (“We must thus be governed by the text —

solemnly adopted by the governments of many separate

nations — whatever conclusions might be drawn from

the intricate drafting history ... .”).

15

Like the Article 17 issue, this Article 25 issue was

present in El Al but this Court did not rule on it because

the passenger failed to preserve it. 119S Ct at §70 and

n10. Justice Stevens made it vigorously clear in his

dissent in £7 Al that under Article 20, “[t]he Convention...

does not preempt local law in cases arising out of ‘willful

misconduct,” 119 S. Ct. at 676, and that “accident cases...

preempt local law, [while] willful cases... do not.” Jd. at

677. (His dissent was not as to this point but as to

preemption of local law in the “narrow sliver of incidents

that arise neither from an accident nor willful

misconduct.” Jd. at 676 (footnote omitted).

Like the question of defining an “accident,” the

question of the relationship between Article 17 and

Article 25 is a matter of great public importance affecting

millions of travelers nationwide. (Its significance is not

diminished by the fact that for cases arising since March

4, 1999, Montreal Protocol No. 4 has amended Article 25

to deal expressly only with the cap on damages.)

CONCLUSION

In view of the public importance of the issues,

calling for uniformity of treatment of millions of

travelers, and fairness as between domestic and

international passengers; the court below’s

misperception of this Court’s Saks decision; the lower

courts’ “wrestl[ing] with the Saks definition of ‘accident’

since it was announced,” Wallace, supra; and the conflict

among circuits, the petition for certiorari should be

granted. J

16

Respectfully submitted,

THADDEUS HOLT

Counsel of Record

P.O. Box 440

Of Counsel: Point Clear, Alabama 36564

(334) 990-8750

rating a Attorney for Petitioner

KITTREDGE, DONLEY, ELSON,

FULLEM & EMBICK

The Bank Building

421 Chestnut Street

Philadelphia, PA 19106

(215) 219-1900

August 1, 2000