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In injury case against foreign airline arising out of intrusive security search, U.S. Supreme Court concludes that Warsaw Convention provides exclusive remedies for accidental injuries arising in course of international air travel
On May 22, 1993, Tsui Yuan Tseng arrived at J.F.K. airport in New York bound for Tel Aviv on El Al Israel Airlines. When she gave “illogical” answers to routine questions, guards classified her as a “high risk” passenger and had her undergo a “security search.”
This required her to remove her jacket and sweater and to lower her blue jeans to mid-hip level. By hand and security wand, a female guard then spent fifteen minutes searching plaintiff’s entire body outside her clothing, including her breasts and groin area. According to El Al, it had adopted these procedures pursuant to F.A.A. regulations. Cleared of being a security risk, a ruffled Tseng boarded her flight.
A year later, Tseng sued El Al for personal (but nonbodily) injuries in New York state court. As an “agency or instrumentality of a foreign state” under § 1603(a) of the F.S.I.A., the airline removed the case to federal court. The district court, however, dismissed her personal injury claims based on the body search as not amounting to an “accident” that caused physical injury as required by the Warsaw Convention.
The U.S. Court of Appeals for the Second Circuit affirmed in part and reversed in part [122 F.3d 99; see 1997 Int'l Law Update 74]. The Court held that the body search did not constitute an “accident” giving rise to liability for bodily injury under Article 17 of the Warsaw Convention [49 Stat. 3000, T.S. No. 876 (1934), reprinted in 49 U.S.C. § 40105 note]. In the Court’s view, the term “accident” does not include those typical events to which a passenger has presumably consented, i.e., those injuries that take place in the normal operation of the aircraft. Though inconvenient and embarrassing at times, their goal is to preserve airline security for all.
The Court, however, next held that the Convention is not the exclusive remedy for personal injuries sustained in the course of international air travel. The exclusivity provisions of Article 24(2) of the Convention clearly bar resort to local laws only where Article 17 “covers” the incident. As to the treaty’s goal of uniformity, the Second Circuit read Zicherman v. Korean Air Lines Co., 516 U.S. 217 (1996) [see 1996 Int'l Law Update 15] as teaching specifically that the Convention expresses no interest in uniformity so compelling that it would warrant displacing an otherwise applicable body of law.
Based on a division among the Circuits, the Supreme Court of the United States granted certiorari. Over one dissent, the Court reverses. In its view, the Warsaw Convention does bar a passenger from maintaining an action for personal injury damages under local law when her claim fails to satisfy the conditions for liability demanded by the Convention.
At the outset, the Court said that it must give the specific words of a treaty a meaning consistent with the contracting parties’ shared expectations. Moreover, the Court has traditionally considered the negotiating and drafting history (travaux preparatoires) and the understandings of the contracting parties under the treaty regime as guides to treaty interpretation. Here, the Executive Branch as amicus curiae also favors the exclusivity approach.
Noting the Convention’s complete scheme of liability rules and its textual emphasis on uniformity, the Court finds it hard to infer that the Warsaw delegates intended to subject air carriers to the distinct, nonuniform liability rules of the individual signatory nations. The Second Circuit thus misread Zicherman. It merely decided that the Warsaw drafters meant the Treaty to resolve whether there is liability. It then left to domestic law (the local law identified by the forum under its choice of law rules or approaches) all matters dealing with the compensatory damages available to the suitor.
Articles 17, 22, and 24 of the Convention sought to balance the interests of passengers seeking recovery for personal injuries, against the interests of air carriers seeking to limit potential liability. The Second Circuit’s construction, however, would encourage artful pleading by plaintiffs seeking to opt out of the Convention’s liability scheme when local law promised a higher recovery than that set out in the treaty. Such a reading would hardly promote the predictability that adherence to the treaty has brought about worldwide.
The U.S. has recently approved Montreal Protocol No. 4. Clarifying the Convention’s exclusivity, it prospectively amends Article 24 to provide, in relevant part: “In the carriage of passengers …, any action for damages … can only be brought subject to the conditions and limits set out in this Convention ….” Plaintiff admits that this preemptive language would be fatal if applied to her case.
Plaintiff then argued that federal courts generally disfavor federal preemption of state law especially in matters of health and safety. The Court notes, however, that the Convention focuses upon the nation state, not subdivisions within one nation. Thus U.S. courts should not mechanically apply a domestic preemption analysis in determining the nation’s international obligations. Finally, the Court finds comfort in the decisions of other signatory courts, including the House of Lords, that consistently uphold the exclusivity of the Convention.
The dissenting Justice summarizes his views as follows. “Everyone agrees that the literal text of the treaty does not preempt claims of personal injury that do not arise out of an accident. It is equally clear that nothing in the drafting history requires that result. On the contrary, the amendment to the title of the Convention made in response to the proposal advanced by the Czechoslovak delegation, suggests that the parties assumed that local law would apply to all nonaccident cases. I agree with the Court that that inference is not strong enough, in itself, to require that the ambiguity be resolved in the plaintiff’s favor. It suffices for me, however, that the history is just as ambiguous as the text. I firmly believe that a treaty, like an Act of Congress, should not be construed to preempt state law unless its intent to do so is clear.” [Slip op. 14]
Citation: El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, No. 97-475 (U.S. Supreme Court, January 12, 1999).
Filed in: 1999 International Law Update, Issue 1
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In suit arising out of Soviet shoot down of Korean aircraft over Sea of Japan, U.S. Supreme Court holds that Death on High Seas Act does not allow recovery for victims’ pain and suffering
On September 1, 1983, Soviet aircraft used missiles to shoot down Korean Air Lines (KAL) flight KE007. En route from Alaska to South Korea, the plane had strayed into Soviet air space over the Sea of Japan. According to experts, the plane had remained airborne for about twelve minutes after the missiles hit it. It then crashed into the sea, killing all 269 persons aboard.
Along with two other plaintiffs, Philomena Dooley sued KAL as personal representative of Cecelio Chuapoco. Over and above pecuniary damages to next of kin, plaintiffs sought damages for decedent’s pre-death pain and suffering.
In 1996, however, the U.S. Supreme Court handed down Zicherman v. Korean Air Lines, 516 U.S. 217, 1996 Int’l Law Update 15. There the Court held that the exclusively applicable U.S. law in cases of fatal air crashes on the high seas was the Death on the High Seas Act (DOHSA) [46 U.S.C.App. Section 761ff]. DOHSA did not in terms allow recovery for loss-of-society damages. On this basis, the district court dismissed all of the instant plaintiffs’ pain-and-suffering claims.
In affirming, the Court of Appeals rejected petitioners’ argument that general maritime law provided a survival action for pain and suffering damages, holding that Congress has decided who may sue and for what in cases of death on the high seas [see 117 F.3d 1477 (D.C. Cir. 1997)]. On certiorari, the U.S. Supreme Court unanimously affirms.
The Court points out that, before Congress enacted DOHSA in 1920, admiralty law did not provide for wrongful death suits. The thinking was that such suits were personal to the victim and expired with her. DOHSA created a right of action for wrongful death on the high seas. It limited damage recovery, however, to pecuniary losses suffered by the decedent’s surviving close relatives.
In later decisions, the Court denied survivors the right to obtain damages for loss of society. In so doing, it ruled that Congress had legislated comprehensively in DOHSA and had put nothing in the statute about nonpecuniary recoveries.
Plaintiffs argued that DOHSA is strictly a wrongful death statute. It does not deal one way or the other with the principle that a decedent’s representative should be able to pursue a survival action on decedent’s behalf to recover for her own losses. Such a suit under general admiralty law would allow damages for the pain and suffering endured by plaintiffs’ decedents as the airliner careened downward toward the sea.
The Court sees no merit in these contentions. DOHSA has a survival provision but one much more restrictive than the model urged by plaintiffs. It allows recovery for the survivors’ financial losses in a personal injury action carried on to completion after plaintiff dies.
Moreover, Congress in 1920 did insert a survival provision along traditional lines into the Jones Act [45 U.S.C. Section 59]. It allows seaman to sue for damages for their own personal injuries. Since Congress did not go further and include a similar provision in DOHSA, however, it is not for the Court to capsize the symmetry set by the legislature.
Citation: Dooley v. Korean Air Lines Co., Ltd., No. 97-704 (Sup. Ct. June 8, 1998).
Filed in: 1998 International Law Update, Issue 6
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U.S. and France conclude new aviation agreement leading to “open skies” arrangement
On April 8, 1998, the U.S. and France concluded a new aviation agreement to expand access to each other’s market and increase competition. The parties signed the Agreement on June 18, 1998. The main points of the Agreement are:
- Passenger flights: Within five years, the U.S. and France will develop “open skies” relations and will let airlines determines flights and fares.
- Transition period: Airlines may operate from anywhere in France to anywhere in the U.S. and vice versa. The capacity will increase gradually. U.S. and French carriers may have code-sharing agreements.
- Air cargo: The market for cargo flights will gradually open between 1988 and 2011.
- Dispute settlement: Arbitration may involve the International Civil Aviation Organization (ICAO) if the parties cannot agree themselves. Notably, the arbitrators may recommend preliminary relief measures pending a final decision. Arbitration must conclude within 160 days of appointment of the president of the arbitral tribunal, or within 220 days of the decision of one of the parties to arbitrate.
Citation: Information received from the Press Department of the French Embassy in Washing¬ton, D.C., Phone: (202) 944-6066; News from France, Vol. 98.07, 13 April 1998, page 3; USA Today (April 9, 1998), page 7A. [Additional information is available on the website www.¬info-france-usa.org.]
Filed in: 1998 International Law Update, Issue 6
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U.S. continues to bar flights over large parts of Afghanistan
The Federal Aviation Administration (FAA) has extended the prohibition on flights over Afghanistan until May 10, 2000, for safety reasons because of the ongoing civil war. The FAA, however, lifted the prohibition for Afghan airspace east of 070 degrees 35′ east longitude, and south of 33 degrees north latitude. The prohibition dates originally from the year 1994 because of the Afghan political factions’ weapons’ capability of attacking airplanes.
Citation: 63 Federal Regis¬ter 26684 (May 13, 1998).
Filed in: 1998 International Law Update, Issue 6
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District of Columbia Circuit upholds Federal Aviation Administration rule charging air traffic control fees to private and mostly foreign carriers for overflights of U.S.
Section 273 of the Federal Aviation Reauthorization Act of 1996 (the Act), 49 U.S.C. § 45301, ordered the Federal Aviation Administration (FAA) to set up a fee structure allowing it to collect from certain mostly foreign air carriers up to $100,000,000 per year for services rendered by the FAA during overflights but not hitherto charged. It applied to “[a]ir traffic control and related services provided to aircraft other than military and civilian aircraft of the United States government or of a foreign government that neither take off from, nor land in, the United States.”
Under the Act’s special statutory procedure, the FAA published a proposed fee schedule and collection procedure in May 1997 as an interim final rule (IFR) and allowed a sixty-day period for comments. Asiana Airlines, Inc. and several other foreign carriers plus an association of Canadian airlines, petitioned the U.S. Court of Appeals for the District of Columbia Circuit to set aside the IFR on a variety of domestic and international grounds. The Court affirms the FAA.
As to the international contentions, petitioners asserted that, despite the procedures specified in the Act, the FAA had contravened the consultation provisions of several international aviation agreements, by making the new fee structure effective before considering their comments and objections. They also contended that the IFR violated the anti-discrimination provisions of international agreements by imposing fees on overflights which had a disparate impact on foreign airlines.
Petitioners cited, for example, the U.S.-Canada Air Transport Agreement as imposing a duty to take part in consultations and information exchanges before either party changes its fee structure. The Court differs. “The strongest language petitioners advance, found in the same agreement, says no more than that ‘[r]easonable notice shall be given prior to changes in user charges.’ In this case, the FAA published the new fee structure sixty days before its effective date. … Petitioners offer us no basis to conclude that this is not reasonable notice.” [399]
Even if international agreements did impose a duty to consult, the record shows that, before the IFR came out, the FAA held informal and public meetings with representatives of foreign air carriers and received forty documents with comments on the proposed rule.
Petitioners’ substantive points were that the FAA’s rule discriminated against foreign air carriers and that this violated several international aviation agreements. In the Court’s view, however, they should bring their grievances to congress rather than the courts since the FAA merely carried out its legislative mandate. Nevertheless, the language of the Act is quite neutral since it applies to all overflights irrespective of nationality.
“Of course, a facially neutral statute may be no more than a pretext to mask discriminatory intent and effects but we find no pretext in this case. … Flights crossing through U.S. airspace require facilities and staff to manage them. Heretofore, these flights have not borne their share of the costs of services provided to them by the FAA. It is not discriminatory to impose fees on this group of users for services that they use but for which they have not previously been charged, regardless of whether the group is disproportionately composed of foreign carriers.” [400]
Citation: Asiana Airlines, Inc. v. Federal Avia¬tion Administration, 134 F.3d 393 (D.C. Cir. 1998).
Filed in: 1998 International Law Update, Issue 5
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U.S. and Japan conclude civil aviation agreement to open Japanese market to U.S. carriers
On January 31, 1998, the U.S. and Japan concluded an aviation agreement which provides a new frame for the 1952 Civil Air Transport Agreement between the two countries.
The carriers of “incumbent” Japan routes and all-cargo carriers (deriving their rights from the 1952 Agreement, here: United, Northwest, Federal Express) may operate from any point in the U.S. to any point in Japan. For example, more flights can therefore originate in Chicago/Midwest region. The number of flights to Japan will become unlimited, and more cities will have direct flights to Japan.
The Agreement provides new opportunities for so-called “non-incumbent” carriers in the passenger & cargo and all-cargo area by adding new flights to Japan. The total number of weekly flights will increase from currently 46 to 136 in the year 2001. This will favor, for example, American, Delta and Continental.
Also, U.S. and Japanese carriers may engage in “code sharing” (putting the 2-letter code of one airline on another’s flight to expand networks and save costs).
The U.S. and Japan will continue negotiations no later than January 1, 2001, to establish a fully liberal aviation relationship.
[Japan is a very important market for U.S. airlines, generating more than $10 billion in revenue annually (1995 estimate). Also, Japanese tourists spent more than $19 billion in the U.S. in 1996. The U.S. has fully liberal aviation agreements with several Asian nations, including Brunei, Malaysia, New Zealand, Singapore and Taiwan.]
Citation: General Accord of the Civil Air Transport Agreement (U.S.-Japan), January 31, 1998. The Agreement is available from the U.S. Department of State, Aviation Office, Phone: (202) 647-5843 or 647-8001; a statement of Japanese Foreign Minister Obuchi is available on the website of the Japanese Ministry of Foreign Affairs, at www.mofa.go.jp/cs/civil.htm.
Filed in: 1998 International Law Update, Issue 2
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Mexico publishes rules that regulate overflights and landings by foreign aircraft within Mexican territory
Effective October 4, 1977, the Mexican government has issued rules, drafted jointly with other agencies, to coordinate the grants of permission for overflights by, and landing of, foreign aircraft within Mexican jurisdiction. Four different government agencies will play a role in these authorizations. Among the new rules are:
- Using diplomatic channels, foreign governments must ask for permission for their aircraft to take part in overflights. (Segunda, 2.).
- The rules ban flights that interfere with law enforcement activities (for example, if the flight would “intercept the pursuit of” an aircraft engaged in illicit activities) (Tercera, 1.a.(1.)).
- Foreign pilots have to notify the competent agency of any change in the route of a programmed flight. [Editors' Note: the rules list the competent agencies that have jurisdiction over various types of flight activities.] (Tercera, 1.b. (1)&(2)).
- The rules allow the flights of foreign aircraft that take part in the war against drug-trafficking only for refueling or in like special situations. (Tercera, 1.c.(2.)).
- Foreign aircraft may not have installations on Mexican territory (Cuarta).
Citation: Bases de coordinación para autorizar sobrevuelos en el espacio aereo mexicano y aterrizaje de aeronaves extranjeras, 1997 Diario Oficial de la Federación [Mexican Official Gazette], October 3, 1997.
Filed in: 1997 International Law Update, Issue 12
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In on-going litigation over Soviet shoot-down of Korean airliner, D.C. Circuit holds that Death on High Seas Act, not Korean law, applied because parties did not challenge district court determination that U.S. law governed
The following case is one in the line of many that arose out the 1983 incident where, near Sakhalin Island, a Korean airliner veered into Soviet airspace where a Soviet military fighter plane shot it down. In a consolidated proceeding, a District of Columbia jury found that Korean Air Lines had committed “willful misconduct,” thus removing the Warsaw Conventions’s limit on liability. The U.S. Court of Appeals for the District of Columbia Circuit affirmed and remanded to the originating courts to determine compensatory damages. The five cases involved in this interlocutory appeal have not yet gone to trial.
The plaintiffs claimed that “general maritime law” permits them to recover for the decedents’ pre-death pain and suffering, and that Korean law allows damages for pre-death pain of the victims and for the mental grief of the surviving relatives. The district court, however, ruled that U.S. law applied. The U.S. Court of Appeals for the District of Columbia Circuit affirms.
The U.S. Supreme Court had decided in Zicherman v. Korean Air Lines, 116 S.Ct. 629, 637, 1996 Int’l L. Update 15, that the Warsaw Convention [49 Stat. 3000] only authorizes compensation for “legally cognizable harm.” The forum court would determine the law applicable. After its choice-of-law analysis under forum law, the lower court here concluded that U.S. law governed. No party challenged that determination. The court further ruled that the Death on the High Seas Act [46 U.S.C. § 761] (DOHSA) was the controlling U.S. law, and that it did not allow recovery of non-pecuniary damages.
The Court disagrees with the plaintiffs that “general maritime law” nevertheless permits them to recover. On the contrary, lower federal courts should not extend the general maritime law to areas in which Congress has already legislated. For deaths on the high seas, Congress decided in DOHSA who may sue and for what.
The Court also rejects a related argument. “Because the Death on the High Seas Act is a ‘wrongful death’ statute, plaintiffs insist that it has no bearing on survival remedies. They have missed the point. That the Act provides remedies only to certain surviving relatives for their losses and provides no compensation for the decedent’s own losses is the very reason why courts may not create a survival remedy.” [15-16]
The Court also rebuffs the plaintiffs’ argument that the law of Korea applies and provides such a remedy. According to the plaintiffs, 46 U.S.C. § 764 allows for a right of action based on foreign law for a wrongful act that occurred on the high seas. According to plaintiffs’ South Korean attorney, Korean law permits damages for the victims’ pre-death suffering and the survivors’ mental anguish.
“If plaintiffs were correct, § 764 would license them to pick and choose among provisions of U.S. and South Korean law in order to assemble the most favorable package of rights against the defendant. That would be odd enough. But stranger still is the notion that South Korean law has any bearing on this case. Faced with Zicherman’s directive to make a choice-of-law determination, … the district court chose U.S. law, not South Korean law. Plaintiffs have not appealed this ruling. So how does South Korean law enter the picture?” [20-21]
Citation: In re: Korean Air Lines disaster of September 1, 1983, No. 96-5278 (D.C. Cir. July 11, 1997).
Filed in: 1997 International Law Update, Issue 8
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In suit against El Al Airlines, Second Circuit rules that intrusive body search of female passenger not “accident” covered by Warsaw Convention but that passenger may pursue injury claims in state courts
On May 22, 1993, Tsui Yuan Tseng arrived at J.F.K. airport in New York bound for Tel Aviv. When she gave “illogical” answers to routine questions, guards classified her as a “high risk” passenger and subjected her to a “security search.” This required her to remove her jacket and sweater and to lower her blue jeans to mid-hip level while a female guard manually search her entire body outside her clothing, including her breasts and groin area. El Al had adopted these procedures pursuant to F.A.A. regulations. Cleared of being a security risk, Tseng boarded her flight. In addition, the airline allegedly lost or damaged her personal belongings.
In May 1994, Tseng sued El Al in New York state court. In its capacity as an “agency or instrumentality of a foreign state” under § 1603(a) of the F.S.I.A., the airline removed the case to federal court. In her federal suit, plaintiff won $1034.90 in property damages. The district court, however, dismissed her personal injury claims based on the body search as not amounting to an “accident” that caused physical injury as required by the Warsaw Convention.
The U.S. Court of Appeals for the Second Circuit affirms in part and reverses in part. The Court first addresses whether the body search constituted an “accident” giving rise to liability for bodily injury under Article 17 of the Warsaw Convention [49 Stat. 3000, T.S. No. 876 (1934), reprinted in 49 U.S.C. § 40105 note].
In the Court’s view, the term “accident” does not include those typical events to which a passenger has presumably consented, i.e., those injuries that take place in the normal operation of the aircraft. For example, U.S. courts have held that the Convention does not apply to events such as a passenger’s death by natural causes, fights between passengers, routine repressurization of the aircraft, and injuries resulting from intoxication. Likewise, a security search is a routine airline procedure. Furthermore, the Court does not wish to discourage international airlines from carrying out security checks.
“As a consequence, we hold that even though the event of which plaintiff complains occurred during the course of her embarkation on defendant’s airplane, there was no accident and she suffered no bodily injury. Hence, under the terms of Article 17 of the Warsaw Convention, El Al may not be held liable in damages to her.” [3810]
The Court, however, next holds that the Convention is not the exclusive remedy for personal injuries sustained in the course of international air travel. The exclusivity provisions of Article 24(2) of the Convention clearly bar resort to local laws only where Article 17 “covers” the incident. The drafting history, other cases, and scholarly comments all indicate that state law could provide a passenger’s remedy where the Convention did not expressly apply to a particular injury. Though the House of Lords reading differs on this point, this Court sees its own interpretation as both shielding airlines from catastrophic judgments while protecting passengers hurt in the course of regular airline operations.
Citation: Tseng v. El Al Israel Airlines, Ltd., No. 96-7447 (2d Cir. June 13, 1997).
Filed in: 1997 International Law Update, Issue 7
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In suit by passengers captured during Gulf War, House of Lords reads Warsaw Convention as barring all common law causes of action in areas of liability and damages addressed by its terms
At 6:15 pm on August 1, 1990, passengers boarded a British Airways (BI) scheduled flight from London to Malaysia with fuelling stops in Kuwait and Madras. It landed in Kuwait on August 2, about four hours after Iraq had invaded the country. After the passengers had entered the terminal, Iraqi troops seized them and took them to Baghdad where they held the passengers until their release on August 21.
One passenger later sued BI for £100,000 in the Scottish courts based on the common law theory that BI had breached an implied term of the contract of carriage to take reasonable care for her safety. Several others brought common law actions in an English tribunal, alleging that BI knew of the danger of hostilities and negligently failed to divert the flight to a safer place for fueling.
The respective lower courts dismissed their actions in reliance upon the Warsaw Convention of 1929, as amended in 1955 (the Convention). Eventually, the House of Lords granted review on the issue of whether the Convention provided the exclusive cause of action for a passenger who claims against the carrier for loss, injury and damage sustained in the course of, or arising out of, international carriage by air.
Answering the question affirmatively, the House of Lords dismisses the appeals of all passengers. After noting the conflicts in various foreign courts including the U.S. on the above issue, the Lords analyze the text, context, purpose and travaux preparatoire of the Convention. They preliminarily point out that Article 3(1) provides that each international ticket shall notify the passenger that the Convention may be the exclusive and limiting law as to claims against the Carrier.
Most of the Lords’ focus is on provisions of Chapter III of the Convention. Article 17 states that the carrier may be liable for the death or bodily injury of passengers in the course of the flight or when getting off or on the aircraft. Article 23 voids any provision that would relieve or limit the liability of the carrier as set forth in the Convention. The parties agreed that, if they had a remedy under Article 17, it would exclude any separate common law action for damages not covered by that article.
Plaintiffs’ contention that to deny them a remedy would violate the European Convention on Human Rights fails to persuade the Lords. In their view, that Convention does not apply to international efforts to harmonize arrangements in trade and transportation across national boundaries.
The Lords also note that any other ruling would distort the uniformity sought by the Warsaw Convention since many of its parties — notably the U.S. — do not belong to the Human Rights Convention.
The text and history of the Warsaw Convention show that courts should read it as harmonizing two sets of interests: the carrier would accept restraints on its freedom to contract its liability down or away and, in return, international passengers would accept the limits the Convention uniformly imposes on the nature and extent of the claims available against the carrier. On those matters pre-empted by the Convention, worldwide uniformity is not possible if the carrier is subject to the varying tort and contract laws of the member states.
Citation: Abnett v. British Airways plc, The Times, 13 December 1996 [House of Lords].
Filed in: 1997 International Law Update, Issue 4
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