EL AL ISRAEL AIRLINES, LTD. v. TSUI YUAN TSENG


Syllabus

EL AL ISRAEL AIRLINES, LTD. v. TSUI YUAN TSENG ( No. 97-475 )
122 F. 3d 99, reversed.

EL AL ISRAEL AIRLINES, LTD. v. TSUI YUAN TSENG

certiorari to the united states court of appeals for the second circuit


No. 97–475. Argued November 10, 1998—Decided January 12, 1999

Before plaintiff/respondent Tseng boarded an El Al Israel Airlines flight from New York to Tel Aviv, El Al subjected her to an intrusive security search. Tseng sued El Al for damages in a New York state court, asserting a state-law personal injury claim for, inter alia , assault and false imprisonment, but alleging no bodily injury. El Al removed the case to the Federal District Court, which dismissed the claim on the basis of the treaty popularly known as the Warsaw Convention. Key Convention provisions declare that the treaty “appl[ies] to all international transportation of persons, baggage, or goods performed by aircraft for hire,” Ch. I, Art. 1(1); describe three areas of air carrier liability, Ch. III, Arts. 17 (bodily injuries suffered as a result of an “accident … on board the aircraft or in the course of any of the operations of embarking or disembarking”), 18 (baggage or goods destruction, loss, or damage), and 19 (damage caused by delay); and instruct that “cases covered by article 17” “can only be brought subject to the conditions and limits set out in th[e] [C]onvention,” Art. 24. Tseng’s claim was not compensable under Article 17, the District Court stated, because Tseng sustained no bodily injury as a result of the search, and the Convention does not permit recovery for solely psychic or psychosomatic injury (citing Eastern Airlines, Inc. v. Floyd, 499 U. S. 530). That court further concluded that Tseng could not pursue her claim, alternately, under New York tort law because Article 24 shields the carrier from liability for personal injuries not compensable under Article 17. Reversing in relevant part, the Second Circuit concluded first that no “accident” within Article 17’s compass had occurred. In that court’s view, the Convention drafters did not aim to impose close to absolute liability for an individual’s personal reaction to “routine operating procedures,” which, although inconvenient and embarrassing, are the price passengers pay for airline safety. The court next concluded that the Convention does not shield the same routine operating procedures from assessment under the diverse laws of signatory nations (and, in the case of the United States, States within one Nation) governing assault and false imprisonment. Article 24, the court said, precludes resort to local law only where the incident is “covered” by Article 17, i.e., where there has been an accident, either on the plane or in the course of embarking or disembarking, which led to bodily injury. The court found support in the drafting history of the Convention, which it construed to indicate that national law was intended to provide the passenger’s remedy where the Convention did not expressly apply. In rejecting the argument that allowance of state-law claims when the Convention does not permit recovery would contravene the treaty’s goal of uniformity, the Second Circuit read Zicherman v. Korean Air Lines Co., 516 U. S. 217, to instruct specifically that the Convention expresses no compelling interest in uniformity that would warrant supplanting an otherwise applicable body of law.

Held:<unicode value="8194"> The Warsaw Convention precludes a passenger from maintaining an action for personal injury damages under local law when her claim does not satisfy the conditions for liability under the Convention. Pp. 8–19.

(a) The Court’s inquiry begins with Article 24, which provides that “cases covered by article 17”—in the governing French text, “les cas prévus à l’article 17”—may only be brought subject to the Convention’s conditions and limits. The specific words of a treaty must be given a meaning consistent with the contracting parties’ shared expectations. Air France v. Saks, 470 U. S. 392. Moreover, the Court has traditionally considered as aids to a treaty’s interpretation its negotiating and drafting history (travaux préparatoires) and the postratification understanding of the contracting parties. Zicherman, 516 U. S., at 226. El Al and the United States, as amicus curiae, urge that the Article 24 words, “les cas prévus à l’article 17,” refer generically to all personal injury cases stemming from occurrences on board an aircraft or in embarking or disembarking, and serve to distinguish that class of cases (Article 17 cases) from cases which Articles 18 (baggage claims) and 19 (delay claims) address. So read, Article 24 precludes a passenger from asserting any air transit personal injury claims under local law, including claims that fail to satisfy Article 17’s liability conditions, notably, because the injury did not result from an “accident,” see Saks, 470 U. S., at 405, or because the “accident” did not result in physical injury or physical manifestation of injury, see Floyd, 499 U. S., at 552. The reasonable view of the Executive Branch concerning the meaning of an international treaty ordinarily merits respect, see Sumitomo Shoji America, Inc. v. Avagliano, 457 U. S. 176, and in this case is most faithful to the Convention’s text, purpose, and overall structure. Pp. 8–10.

(b) Recourse to local law would undermine the uniform regulation of international air carrier liability that the Convention was designed to foster. See, e.g., Floyd, 499 U. S., at 552. The Convention’s signatories, in the treaty’s preamble, specifically recognized the advantage of regulating carrier liability in a uniform manner. To provide the desired uniformity, Chapter III sets out an array of liability rules applicable to all international air transportation of persons, baggage, and goods. These rules delineate the three areas of carrier liability (Articles 17, 18, and 19), the conditions exempting carriers from liability (Article 20), the monetary limits of liability (Article 22), and the circumstances in which carriers may not limit liability (Articles 23 and 25). Given the Convention’s comprehensive scheme of liability rules and its textual emphasis on uniformity, the Court would be hard put to conclude that the Warsaw delegates meant to subject air carriers to the distinct, nonuniform liability rules of the individual signatory nations. The Second Circuit misperceived the meaning of Zicherman, which acknowledged the Convention’s central endeavor to foster uniformity in the law of international air travel. See 516 U. S., at 230. Zicherman determined that 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) determination of the compensatory damages available to the suitor. See id., at 231.

Articles 17, 22, and 24 of the Convention are also designed as a compromise between the interests of passengers seeking recovery for personal injuries, and the interests of air carriers seeking to limit potential liability. See, e.g., Floyd , 499 U. S., at 546. In Article 17, carriers are denied the contractual prerogative to exclude or limit their liability for personal injury. In Articles 22 and 24, passengers are limited in the amount of damages they may recover, and are restricted in the claims they may pursue by the Convention’s conditions and limits. Construing the Convention, as did the Second Circuit, to allow passengers to pursue claims under local law when the Convention does not permit recovery could produce several anomalies. Carriers might be exposed to unlimited liability under diverse legal regimes, but would be prevented, under the treaty, from contracting out of such liability. Passengers injured physically in an emergency landing might be subject to the liability caps of the Convention, while those merely traumatized in the same mishap would be free to sue outside of the Convention for potentially unlimited damages. The Second Circuit’s construction would encourage artful pleading by plaintiffs seeking to opt out of the Convention’s liability scheme when local law promised recovery in excess of that prescribed by the treaty. Such a reading would scarcely advance the predictability that adherence to the treaty has achieved worldwide.

The Second Circuit feared that a reading of Article 17 to exclude relief outside the Convention for Tseng would deprive a passenger injured by a malfunctioning escalator in the airline’s terminal of recourse against the airline, even if the airline recklessly disregarded its duty to keep the escalator in proper repair. The Convention’s preemptive effect on local law, however, extends no further than the Convention’s own substantive scope. A carrier, therefore, is subject to liability under local law for passenger injuries occurring before “any of the operations of embarking or disembarking,” Art. 17. Tseng raised the concern that carriers will escape liability for their intentional torts if passengers are not permitted to pursue personal injury claims outside of the Convention’s terms. But this Court has already cautioned that the definition of “accident” under Article 17 is an “unusual event … external to the passenger ,” and that “[t]his definition should be flexibly applied.” Saks, 470 U. S., at 405 (emphasis added). The parties chose not to pursue here the question whether an “accident” occurred, for an affirmative answer would still leave Tseng unable to recover under the treaty; she sustained no “bodily injury” and could not gain compensation under Article 17 for her solely psychic or psychosomatic injuries. Pp. 10–14.

(c) The Article 17 drafting history is consistent with this Court’s understanding of the preemptive effect of the Convention. Although a preliminary draft of the Convention made carriers liable “ ‘in the case of death, wounding, or any other bodily injury suffered by a traveler, ’ ” Saks , 470 U. S., at 401, the later draft that prescribed what is now Article 17 narrowed airline liability to encompass only bodily injury caused by an “accident.” It is improbable that, at the same time the drafters narrowed the conditions of liability in Article 17, they intended, in Article 24, to permit passengers to skirt those conditions by pursuing claims under local law. Inspecting the drafting history, the Second Circuit stressed a proposal by the Czechoslovak delegation to state in the treaty that, in the absence of a stipulation in the Convention itself, the provisions of laws and national rules relative to carriage in each signatory state would apply. That proposal was withdrawn upon amendment of the Convention’s title to read “C onvention F or T he U nification O f C<font i="1" scaps="1">ertain R ules R elating T o I nternational T ransportation B y A ir. ” (Emphasis added.) The British House of Lords found this drafting history inconclusive, reasoning that the inclusion of the word “certain” in the Convention’s title indicated that the Convention was concerned with certain rules only, not with all the rules relating to international carriage by air; that the Convention is a partial harmonization, directed to the particular issues with which it deals, including a carrier’s liability to passengers for personal injury; and that, given the Convention’s overall objective to ensure uniformity, the Czechoslovak delegation may have meant only to underscore that national law controlled chapters of law relating to international air carriage with which the Convention was not attempting to deal. In light of the Lords’ exposition, the withdrawn Czechoslovak proposal will not bear the weight the Second Circuit placed on it. Pp. 14–16.

(d) Montreal Protocol No. 4, to which the United States has recently subscribed, 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 … .” Under amended Article 24, Tseng and El Al agree, the Convention’s preemptive effect is clear: The treaty precludes passengers from bringing actions under local law when they cannot establish air carrier liability under the treaty. Revised Article 24 merely clarifies, it does not alter, the Convention’s rule of exclusivity. Supporting the position that revised Article 24 provides for preemption not earlier established, Tseng urges that federal preemption of state law is disfavored generally, and particularly when matters of health and safety are at stake. Tseng overlooks in this regard that the nation-state, not subdivisions within one nation, is the focus of the Convention and the perspective of the treaty partners. The Court’s home-centered preemption analysis, therefore, should not be applied, mechanically, in construing this country’s international obligations. Decisions of the courts of other Convention signatories, including the House of Lords opinion already noted, corroborate the Court’s understanding of the Convention’s preemptive effect. Such decisions are entitled to considerable weight. Saks , 470 U. S., at 404. Pp. 16–19.

122 F. 3d 99, reversed.

Ginsburg, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Scalia, Kennedy, Souter, Thomas, and Breyer, JJ., joined. Stevens, J., filed a dissenting opinion.


TOP

Dissent

EL AL ISRAEL AIRLINES, LTD., PETITIONER v.
TSUI YUAN TSENG

on writ of certiorari to the united states court of appeals for the second circuit


[January 12, 1999]

Justice Stevens , dissenting.

My disagreement with the Court’s holding today has limited practical significance, not just because the issue has been conclusively determined for future cases by the recent amendment to the Warsaw Convention, see ante, at 2, 16–17, but also because it affects only a narrow category of past cases. The decision is nevertheless significant because, in the end, it rests on the novel premise that preemption analysis should be applied differently to treaties than to other kinds of federal law, see ante , at 17. Because I disagree with that premise, I shall briefly explain why I believe the Court has erred.

I agree with the Court that the drafters of the Convention intended that the treaty largely supplant local law. Article 24 preempts local law in three major categories: (1) personal injury claims arising out of an accident; 1 (2) claims for lost or damaged baggage; and (3) damage occasioned by transportation delays. 2 Those categories surely comprise the bulk of potential disputes between international air carriers and their passengers.

The Convention, however, does not preempt local law in cases arising out of “wilful misconduct.” Article 25 expressly provides that a carrier shall not be entitled to avail itself of the provisions of the Convention that “exclude or limit” its liability if its misconduct is willful. 3 Moreover, the question whether the carrier’s wrongful act “is considered to be equivalent to wilful misconduct” is determined by “the law of the court to which the case is submitted.” Ibid. Accordingly, the vast majority of the potential claims by passengers against international air carriers are either preempted by Article 24 or unequivocally governed by local law under Article 25.

Putting these cases aside, we are left with a narrow sliver of incidents involving personal injury that arise neither from an accident nor willful misconduct. 4 Although the drafters of the Treaty may not have realized that any such cases might arise, our construction of the term “accident” in Air France v. Saks, 470 U. S. 392, 405 (1985) , had the effect of either recognizing or creating this narrow band of cases. Frankly, I am not persuaded that this case belongs in this interstitial niche because I believe it should have been resolved by determining that petitioner’s alleged misconduct was either an accident within the meaning of Article 17, or involved willfulness as a matter of local law. Be that is it may, the parties have insisted that we decide the case on the assumption that it belongs in the sliver about which the treaty is silent.

This case and Saks therefore differ from each of the cases that the Court has cited in footnote 16 of its opinion to emphasize the importance of respecting “the treaty’s preemptive effect,” as none of those cases involved personal injury resulting from a nonaccident. Ante , at 18. 5 Given the unique character of this and the few other cases in the sliver, it is clear to me that the central purposes of the Convention will not be affected, whether we treat them like accident cases, which preempt local law, or like willful cases, which do not.

The overriding interest in achieving “ ‘uniformity of rules governing claims arising from international air transportation,’ ” ante , at 11, will be accommodated in the situations explicitly covered by Article 24, regardless of how the Court decides this case. In those circumstances, the Convention’s basic tradeoff between the carriers’ interest in avoiding unlimited liability and the passengers’ interest in obtaining compensation without proving fault will be fully achieved.

On the other hand, the interest in uniformity is disregarded in the category of cases that involve willful misconduct. Under the treaty, a reckless act or omission may constitute willful misconduct. See Koirala v. Thai Airways Int’l, Ltd , 126 F. 3d 1205, 1209–1210 (CA9 1997); Goldhirsch, supra n.1 at 121 (stating that most civil law jurisdictions have found that gross negligence satisfies Article 25). This broad definition increases the number of cases not preempted by the Convention. In these circumstances, the delegates at Warsaw did decide “to subject air carriers to the distinct, nonuniform liability rules of the individual signatory nations.” Ante, at 11.

Thus, the interest in uniformity would not be significantly impaired if the number of cases not preempted, like those involving willful misconduct, was slightly enlarged to encompass those relatively rare cases in which the injury resulted from neither an accident nor a willful wrong. That the interest in uniformity is accommodated in one category of cases but not the other simply raises, without resolving, the question whether the drafters of the treaty intended to treat personal injury nonaccident cases as though they involved accidents. A plaintiff in such a case, unlike those injured by an accident, receives no benefit from the treaty, and normally should not have a claim that is valid under local law preempted, unless the treaty expressly requires that result. 6

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, see ante, at 15, 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. See Medtronic, Inc. v. Lohr, 518 U. S. 470, 485 (1996) ; Department of Revenue of Ore. v. ACF Industries, Inc., 510 U. S. 332, 351 (1994) ; CSX Transp., Inc. v. Easterwood, 507 U. S. 658, 664 (1993) ; Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947) . For this reason, I respectfully dissent.


Notes

1 As we have already held, Article 17 only covers accidents, which we defined as “an unexpected or unusual event or happening that is external to the passenger.” Air France v. Saks, 470 U. S. 392, 405 (1985) . Thus, I believe Article 24(2)’s reference to Article 17 does not include nonaccidents. As a leading treatise states with regard to Article 17: “If the passenger’s lawyer does not want the Convention’s limits to be applicable, he must either: a) prove the Convention does not apply because his client was not a passenger in international transportation as defined in Article 1; or b) if the Convention is applicable, that the limits are unavailable because the carrier failed to deliver a ticket as provided by Article 3; or c) the carrier was guilty of wilful misconduct (Article 25) or d) there was no ‘accident’.)” L. Goldhirsch, The Warsaw Convention Annotated: A Legal Handbook 55 (1988) (emphasis added).

2 Article 24 provides: “(1) In the cases covered by articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this convention. “(2) In the cases covered by article 17 the provisions of the preceeding paragraph shall also apply, without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights.”

3 Article 25 provides: “(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 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.”

4 Article 18 (damage to goods) and Article 19 (damage occasioned by delay) are not limited to accidents; any liability under local law for damages to goods or for delay is therefore explicitly preempted by Article 24(1). See Saks, 470 U. S., at 398.

5 See Gal v. Northern Mountain Helicopters Inc., Dkt. No. 3491834918, 1998 B. C. T. C. Lexis 1351, *2–*3 (July 22, 1998) (involving a helicopter crash and noting “the plaintiff invoked the Warsaw Convention claiming for injuries and loss arising from the accident”); Naval-Torres v. Northwest Airlines Inc., 159 D. L. R. (4th) 67, 74, 76 (1998) (stating that injury resulting from second-hand smoke constitutes an accident and expressly noting but declining to resolve the preemption issue decided today by this Court); Emery Air Freight Corp. v. Nerine Nurseries Ltd., [1997] 3 N. Z. L. R. 723, 727, 728 (involving damage to cargo, therefore covered under Article 18, and thus explicitly preempted under Article 24(1)); Seagate Technology Int’l v. Changi Int’l Airport Servs. Pte Ltd., [1997] 3 S. L. R. 1, 2 (same). While the Court is correct in its assertion that the British House of Lords assumed the terrorist attack in Sidhu v. British Airways plc, [1997] 1 All E.R. 193, was not an accident, see ante, at 17, I am puzzled why the Lords came to this conclusion. Courts both in this country and in our sister signatories have frequently found a hijacking to be an accident within the meaning of Article 17. See Saks, 470 U. S., at 405; Ayache v. Air-France, 38 Rev. franç. dr. aérien 450, 451 [1984] (T.G.I. Paris, 1st ch.,) (France); Air-France v. Consorts Telchner, 39 Rev. franç. dr. aérien 232, 240 [1984] (S. Ct. Israel).

6 The Convention does require such a result, for example, in the case of accidents resulting in no physical injury. I agree with the Court that, in that case, the victim’s remedies under local law are preempted by Article 24. See Eastern Airlines, Inc. v. Floyd, 499 U. S. 530, 552 (1991) . My interpretation does not, therefore, produce the anomaly identified ante, at 13. Since I believe that all personal injuries (whether physical or psychological) arising from accidents are covered by Article 17 and therefore preempted by Article 24(2), the “merely traumatized” plaintiff would not be free to sue outside the Convention.


TOP

Dissent

EL AL ISRAEL AIRLINES, LTD., PETITIONER v.
TSUI YUAN TSENG

on writ of certiorari to the united states court of appeals for the second circuit


[January 12, 1999]

Justice Stevens , dissenting.

My disagreement with the Court’s holding today has limited practical significance, not just because the issue has been conclusively determined for future cases by the recent amendment to the Warsaw Convention, see ante, at 2, 16–17, but also because it affects only a narrow category of past cases. The decision is nevertheless significant because, in the end, it rests on the novel premise that preemption analysis should be applied differently to treaties than to other kinds of federal law, see ante , at 17. Because I disagree with that premise, I shall briefly explain why I believe the Court has erred.

I agree with the Court that the drafters of the Convention intended that the treaty largely supplant local law. Article 24 preempts local law in three major categories: (1) personal injury claims arising out of an accident; 1 (2) claims for lost or damaged baggage; and (3) damage occasioned by transportation delays. 2 Those categories surely comprise the bulk of potential disputes between international air carriers and their passengers.

The Convention, however, does not preempt local law in cases arising out of “wilful misconduct.” Article 25 expressly provides that a carrier shall not be entitled to avail itself of the provisions of the Convention that “exclude or limit” its liability if its misconduct is willful. 3 Moreover, the question whether the carrier’s wrongful act “is considered to be equivalent to wilful misconduct” is determined by “the law of the court to which the case is submitted.” Ibid. Accordingly, the vast majority of the potential claims by passengers against international air carriers are either preempted by Article 24 or unequivocally governed by local law under Article 25.

Putting these cases aside, we are left with a narrow sliver of incidents involving personal injury that arise neither from an accident nor willful misconduct. 4 Although the drafters of the Treaty may not have realized that any such cases might arise, our construction of the term “accident” in Air France v. Saks, 470 U. S. 392, 405 (1985) , had the effect of either recognizing or creating this narrow band of cases. Frankly, I am not persuaded that this case belongs in this interstitial niche because I believe it should have been resolved by determining that petitioner’s alleged misconduct was either an accident within the meaning of Article 17, or involved willfulness as a matter of local law. Be that is it may, the parties have insisted that we decide the case on the assumption that it belongs in the sliver about which the treaty is silent.

This case and Saks therefore differ from each of the cases that the Court has cited in footnote 16 of its opinion to emphasize the importance of respecting “the treaty’s preemptive effect,” as none of those cases involved personal injury resulting from a nonaccident. Ante , at 18. 5 Given the unique character of this and the few other cases in the sliver, it is clear to me that the central purposes of the Convention will not be affected, whether we treat them like accident cases, which preempt local law, or like willful cases, which do not.

The overriding interest in achieving “ ‘uniformity of rules governing claims arising from international air transportation,’ ” ante , at 11, will be accommodated in the situations explicitly covered by Article 24, regardless of how the Court decides this case. In those circumstances, the Convention’s basic tradeoff between the carriers’ interest in avoiding unlimited liability and the passengers’ interest in obtaining compensation without proving fault will be fully achieved.

On the other hand, the interest in uniformity is disregarded in the category of cases that involve willful misconduct. Under the treaty, a reckless act or omission may constitute willful misconduct. See Koirala v. Thai Airways Int’l, Ltd , 126 F. 3d 1205, 1209–1210 (CA9 1997); Goldhirsch, supra n.1 at 121 (stating that most civil law jurisdictions have found that gross negligence satisfies Article 25). This broad definition increases the number of cases not preempted by the Convention. In these circumstances, the delegates at Warsaw did decide “to subject air carriers to the distinct, nonuniform liability rules of the individual signatory nations.” Ante, at 11.

Thus, the interest in uniformity would not be significantly impaired if the number of cases not preempted, like those involving willful misconduct, was slightly enlarged to encompass those relatively rare cases in which the injury resulted from neither an accident nor a willful wrong. That the interest in uniformity is accommodated in one category of cases but not the other simply raises, without resolving, the question whether the drafters of the treaty intended to treat personal injury nonaccident cases as though they involved accidents. A plaintiff in such a case, unlike those injured by an accident, receives no benefit from the treaty, and normally should not have a claim that is valid under local law preempted, unless the treaty expressly requires that result. 6

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, see ante, at 15, 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. See Medtronic, Inc. v. Lohr, 518 U. S. 470, 485 (1996) ; Department of Revenue of Ore. v. ACF Industries, Inc., 510 U. S. 332, 351 (1994) ; CSX Transp., Inc. v. Easterwood, 507 U. S. 658, 664 (1993) ; Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947) . For this reason, I respectfully dissent.


Notes

1 As we have already held, Article 17 only covers accidents, which we defined as “an unexpected or unusual event or happening that is external to the passenger.” Air France v. Saks, 470 U. S. 392, 405 (1985) . Thus, I believe Article 24(2)’s reference to Article 17 does not include nonaccidents. As a leading treatise states with regard to Article 17: “If the passenger’s lawyer does not want the Convention’s limits to be applicable, he must either: a) prove the Convention does not apply because his client was not a passenger in international transportation as defined in Article 1; or b) if the Convention is applicable, that the limits are unavailable because the carrier failed to deliver a ticket as provided by Article 3; or c) the carrier was guilty of wilful misconduct (Article 25) or d) there was no ‘accident’.)” L. Goldhirsch, The Warsaw Convention Annotated: A Legal Handbook 55 (1988) (emphasis added).

2 Article 24 provides: “(1) In the cases covered by articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this convention. “(2) In the cases covered by article 17 the provisions of the preceeding paragraph shall also apply, without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights.”

3 Article 25 provides: “(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 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.”

4 Article 18 (damage to goods) and Article 19 (damage occasioned by delay) are not limited to accidents; any liability under local law for damages to goods or for delay is therefore explicitly preempted by Article 24(1). See Saks, 470 U. S., at 398.

5 See Gal v. Northern Mountain Helicopters Inc., Dkt. No. 3491834918, 1998 B. C. T. C. Lexis 1351, *2–*3 (July 22, 1998) (involving a helicopter crash and noting “the plaintiff invoked the Warsaw Convention claiming for injuries and loss arising from the accident”); Naval-Torres v. Northwest Airlines Inc., 159 D. L. R. (4th) 67, 74, 76 (1998) (stating that injury resulting from second-hand smoke constitutes an accident and expressly noting but declining to resolve the preemption issue decided today by this Court); Emery Air Freight Corp. v. Nerine Nurseries Ltd., [1997] 3 N. Z. L. R. 723, 727, 728 (involving damage to cargo, therefore covered under Article 18, and thus explicitly preempted under Article 24(1)); Seagate Technology Int’l v. Changi Int’l Airport Servs. Pte Ltd., [1997] 3 S. L. R. 1, 2 (same). While the Court is correct in its assertion that the British House of Lords assumed the terrorist attack in Sidhu v. British Airways plc, [1997] 1 All E.R. 193, was not an accident, see ante, at 17, I am puzzled why the Lords came to this conclusion. Courts both in this country and in our sister signatories have frequently found a hijacking to be an accident within the meaning of Article 17. See Saks, 470 U. S., at 405; Ayache v. Air-France, 38 Rev. franç. dr. aérien 450, 451 [1984] (T.G.I. Paris, 1st ch.,) (France); Air-France v. Consorts Telchner, 39 Rev. franç. dr. aérien 232, 240 [1984] (S. Ct. Israel).

6 The Convention does require such a result, for example, in the case of accidents resulting in no physical injury. I agree with the Court that, in that case, the victim’s remedies under local law are preempted by Article 24. See Eastern Airlines, Inc. v. Floyd, 499 U. S. 530, 552 (1991) . My interpretation does not, therefore, produce the anomaly identified ante, at 13. Since I believe that all personal injuries (whether physical or psychological) arising from accidents are covered by Article 17 and therefore preempted by Article 24(2), the “merely traumatized” plaintiff would not be free to sue outside the Convention.


TOP

Dissent

EL AL ISRAEL AIRLINES, LTD., PETITIONER v.
TSUI YUAN TSENG

on writ of certiorari to the united states court of appeals for the second circuit


[January 12, 1999]

Justice Stevens , dissenting.

My disagreement with the Court’s holding today has limited practical significance, not just because the issue has been conclusively determined for future cases by the recent amendment to the Warsaw Convention, see ante, at 2, 16–17, but also because it affects only a narrow category of past cases. The decision is nevertheless significant because, in the end, it rests on the novel premise that preemption analysis should be applied differently to treaties than to other kinds of federal law, see ante , at 17. Because I disagree with that premise, I shall briefly explain why I believe the Court has erred.

I agree with the Court that the drafters of the Convention intended that the treaty largely supplant local law. Article 24 preempts local law in three major categories: (1) personal injury claims arising out of an accident; 1 (2) claims for lost or damaged baggage; and (3) damage occasioned by transportation delays. 2 Those categories surely comprise the bulk of potential disputes between international air carriers and their passengers.

The Convention, however, does not preempt local law in cases arising out of “wilful misconduct.” Article 25 expressly provides that a carrier shall not be entitled to avail itself of the provisions of the Convention that “exclude or limit” its liability if its misconduct is willful. 3 Moreover, the question whether the carrier’s wrongful act “is considered to be equivalent to wilful misconduct” is determined by “the law of the court to which the case is submitted.” Ibid. Accordingly, the vast majority of the potential claims by passengers against international air carriers are either preempted by Article 24 or unequivocally governed by local law under Article 25.

Putting these cases aside, we are left with a narrow sliver of incidents involving personal injury that arise neither from an accident nor willful misconduct. 4 Although the drafters of the Treaty may not have realized that any such cases might arise, our construction of the term “accident” in Air France v. Saks, 470 U. S. 392, 405 (1985) , had the effect of either recognizing or creating this narrow band of cases. Frankly, I am not persuaded that this case belongs in this interstitial niche because I believe it should have been resolved by determining that petitioner’s alleged misconduct was either an accident within the meaning of Article 17, or involved willfulness as a matter of local law. Be that is it may, the parties have insisted that we decide the case on the assumption that it belongs in the sliver about which the treaty is silent.

This case and Saks therefore differ from each of the cases that the Court has cited in footnote 16 of its opinion to emphasize the importance of respecting “the treaty’s preemptive effect,” as none of those cases involved personal injury resulting from a nonaccident. Ante , at 18. 5 Given the unique character of this and the few other cases in the sliver, it is clear to me that the central purposes of the Convention will not be affected, whether we treat them like accident cases, which preempt local law, or like willful cases, which do not.

The overriding interest in achieving “ ‘uniformity of rules governing claims arising from international air transportation,’ ” ante , at 11, will be accommodated in the situations explicitly covered by Article 24, regardless of how the Court decides this case. In those circumstances, the Convention’s basic tradeoff between the carriers’ interest in avoiding unlimited liability and the passengers’ interest in obtaining compensation without proving fault will be fully achieved.

On the other hand, the interest in uniformity is disregarded in the category of cases that involve willful misconduct. Under the treaty, a reckless act or omission may constitute willful misconduct. See Koirala v. Thai Airways Int’l, Ltd , 126 F. 3d 1205, 1209–1210 (CA9 1997); Goldhirsch, supra n.1 at 121 (stating that most civil law jurisdictions have found that gross negligence satisfies Article 25). This broad definition increases the number of cases not preempted by the Convention. In these circumstances, the delegates at Warsaw did decide “to subject air carriers to the distinct, nonuniform liability rules of the individual signatory nations.” Ante, at 11.

Thus, the interest in uniformity would not be significantly impaired if the number of cases not preempted, like those involving willful misconduct, was slightly enlarged to encompass those relatively rare cases in which the injury resulted from neither an accident nor a willful wrong. That the interest in uniformity is accommodated in one category of cases but not the other simply raises, without resolving, the question whether the drafters of the treaty intended to treat personal injury nonaccident cases as though they involved accidents. A plaintiff in such a case, unlike those injured by an accident, receives no benefit from the treaty, and normally should not have a claim that is valid under local law preempted, unless the treaty expressly requires that result. 6

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, see ante, at 15, 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. See Medtronic, Inc. v. Lohr, 518 U. S. 470, 485 (1996) ; Department of Revenue of Ore. v. ACF Industries, Inc., 510 U. S. 332, 351 (1994) ; CSX Transp., Inc. v. Easterwood, 507 U. S. 658, 664 (1993) ; Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947) . For this reason, I respectfully dissent.


Notes

1 As we have already held, Article 17 only covers accidents, which we defined as “an unexpected or unusual event or happening that is external to the passenger.” Air France v. Saks, 470 U. S. 392, 405 (1985) . Thus, I believe Article 24(2)’s reference to Article 17 does not include nonaccidents. As a leading treatise states with regard to Article 17: “If the passenger’s lawyer does not want the Convention’s limits to be applicable, he must either: a) prove the Convention does not apply because his client was not a passenger in international transportation as defined in Article 1; or b) if the Convention is applicable, that the limits are unavailable because the carrier failed to deliver a ticket as provided by Article 3; or c) the carrier was guilty of wilful misconduct (Article 25) or d) there was no ‘accident’.)” L. Goldhirsch, The Warsaw Convention Annotated: A Legal Handbook 55 (1988) (emphasis added).

2 Article 24 provides: “(1) In the cases covered by articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this convention. “(2) In the cases covered by article 17 the provisions of the preceeding paragraph shall also apply, without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights.”

3 Article 25 provides: “(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 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.”

4 Article 18 (damage to goods) and Article 19 (damage occasioned by delay) are not limited to accidents; any liability under local law for damages to goods or for delay is therefore explicitly preempted by Article 24(1). See Saks, 470 U. S., at 398.

5 See Gal v. Northern Mountain Helicopters Inc., Dkt. No. 3491834918, 1998 B. C. T. C. Lexis 1351, *2–*3 (July 22, 1998) (involving a helicopter crash and noting “the plaintiff invoked the Warsaw Convention claiming for injuries and loss arising from the accident”); Naval-Torres v. Northwest Airlines Inc., 159 D. L. R. (4th) 67, 74, 76 (1998) (stating that injury resulting from second-hand smoke constitutes an accident and expressly noting but declining to resolve the preemption issue decided today by this Court); Emery Air Freight Corp. v. Nerine Nurseries Ltd., [1997] 3 N. Z. L. R. 723, 727, 728 (involving damage to cargo, therefore covered under Article 18, and thus explicitly preempted under Article 24(1)); Seagate Technology Int’l v. Changi Int’l Airport Servs. Pte Ltd., [1997] 3 S. L. R. 1, 2 (same). While the Court is correct in its assertion that the British House of Lords assumed the terrorist attack in Sidhu v. British Airways plc, [1997] 1 All E.R. 193, was not an accident, see ante, at 17, I am puzzled why the Lords came to this conclusion. Courts both in this country and in our sister signatories have frequently found a hijacking to be an accident within the meaning of Article 17. See Saks, 470 U. S., at 405; Ayache v. Air-France, 38 Rev. franç. dr. aérien 450, 451 [1984] (T.G.I. Paris, 1st ch.,) (France); Air-France v. Consorts Telchner, 39 Rev. franç. dr. aérien 232, 240 [1984] (S. Ct. Israel).

6 The Convention does require such a result, for example, in the case of accidents resulting in no physical injury. I agree with the Court that, in that case, the victim’s remedies under local law are preempted by Article 24. See Eastern Airlines, Inc. v. Floyd, 499 U. S. 530, 552 (1991) . My interpretation does not, therefore, produce the anomaly identified ante, at 13. Since I believe that all personal injuries (whether physical or psychological) arising from accidents are covered by Article 17 and therefore preempted by Article 24(2), the “merely traumatized” plaintiff would not be free to sue outside the Convention.


TOP

Dissent

EL AL ISRAEL AIRLINES, LTD., PETITIONER v.
TSUI YUAN TSENG

on writ of certiorari to the united states court of appeals for the second circuit


[January 12, 1999]

Justice Stevens , dissenting.

My disagreement with the Court’s holding today has limited practical significance, not just because the issue has been conclusively determined for future cases by the recent amendment to the Warsaw Convention, see ante, at 2, 16–17, but also because it affects only a narrow category of past cases. The decision is nevertheless significant because, in the end, it rests on the novel premise that preemption analysis should be applied differently to treaties than to other kinds of federal law, see ante , at 17. Because I disagree with that premise, I shall briefly explain why I believe the Court has erred.

I agree with the Court that the drafters of the Convention intended that the treaty largely supplant local law. Article 24 preempts local law in three major categories: (1) personal injury claims arising out of an accident; 1 (2) claims for lost or damaged baggage; and (3) damage occasioned by transportation delays. 2 Those categories surely comprise the bulk of potential disputes between international air carriers and their passengers.

The Convention, however, does not preempt local law in cases arising out of “wilful misconduct.” Article 25 expressly provides that a carrier shall not be entitled to avail itself of the provisions of the Convention that “exclude or limit” its liability if its misconduct is willful. 3 Moreover, the question whether the carrier’s wrongful act “is considered to be equivalent to wilful misconduct” is determined by “the law of the court to which the case is submitted.” Ibid. Accordingly, the vast majority of the potential claims by passengers against international air carriers are either preempted by Article 24 or unequivocally governed by local law under Article 25.

Putting these cases aside, we are left with a narrow sliver of incidents involving personal injury that arise neither from an accident nor willful misconduct. 4 Although the drafters of the Treaty may not have realized that any such cases might arise, our construction of the term “accident” in Air France v. Saks, 470 U. S. 392, 405 (1985) , had the effect of either recognizing or creating this narrow band of cases. Frankly, I am not persuaded that this case belongs in this interstitial niche because I believe it should have been resolved by determining that petitioner’s alleged misconduct was either an accident within the meaning of Article 17, or involved willfulness as a matter of local law. Be that is it may, the parties have insisted that we decide the case on the assumption that it belongs in the sliver about which the treaty is silent.

This case and Saks therefore differ from each of the cases that the Court has cited in footnote 16 of its opinion to emphasize the importance of respecting “the treaty’s preemptive effect,” as none of those cases involved personal injury resulting from a nonaccident. Ante , at 18. 5 Given the unique character of this and the few other cases in the sliver, it is clear to me that the central purposes of the Convention will not be affected, whether we treat them like accident cases, which preempt local law, or like willful cases, which do not.

The overriding interest in achieving “ ‘uniformity of rules governing claims arising from international air transportation,’ ” ante , at 11, will be accommodated in the situations explicitly covered by Article 24, regardless of how the Court decides this case. In those circumstances, the Convention’s basic tradeoff between the carriers’ interest in avoiding unlimited liability and the passengers’ interest in obtaining compensation without proving fault will be fully achieved.

On the other hand, the interest in uniformity is disregarded in the category of cases that involve willful misconduct. Under the treaty, a reckless act or omission may constitute willful misconduct. See Koirala v. Thai Airways Int’l, Ltd , 126 F. 3d 1205, 1209–1210 (CA9 1997); Goldhirsch, supra n.1 at 121 (stating that most civil law jurisdictions have found that gross negligence satisfies Article 25). This broad definition increases the number of cases not preempted by the Convention. In these circumstances, the delegates at Warsaw did decide “to subject air carriers to the distinct, nonuniform liability rules of the individual signatory nations.” Ante, at 11.

Thus, the interest in uniformity would not be significantly impaired if the number of cases not preempted, like those involving willful misconduct, was slightly enlarged to encompass those relatively rare cases in which the injury resulted from neither an accident nor a willful wrong. That the interest in uniformity is accommodated in one category of cases but not the other simply raises, without resolving, the question whether the drafters of the treaty intended to treat personal injury nonaccident cases as though they involved accidents. A plaintiff in such a case, unlike those injured by an accident, receives no benefit from the treaty, and normally should not have a claim that is valid under local law preempted, unless the treaty expressly requires that result. 6

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, see ante, at 15, 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. See Medtronic, Inc. v. Lohr, 518 U. S. 470, 485 (1996) ; Department of Revenue of Ore. v. ACF Industries, Inc., 510 U. S. 332, 351 (1994) ; CSX Transp., Inc. v. Easterwood, 507 U. S. 658, 664 (1993) ; Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947) . For this reason, I respectfully dissent.


Notes

1 As we have already held, Article 17 only covers accidents, which we defined as “an unexpected or unusual event or happening that is external to the passenger.” Air France v. Saks, 470 U. S. 392, 405 (1985) . Thus, I believe Article 24(2)’s reference to Article 17 does not include nonaccidents. As a leading treatise states with regard to Article 17: “If the passenger’s lawyer does not want the Convention’s limits to be applicable, he must either: a) prove the Convention does not apply because his client was not a passenger in international transportation as defined in Article 1; or b) if the Convention is applicable, that the limits are unavailable because the carrier failed to deliver a ticket as provided by Article 3; or c) the carrier was guilty of wilful misconduct (Article 25) or d) there was no ‘accident’.)” L. Goldhirsch, The Warsaw Convention Annotated: A Legal Handbook 55 (1988) (emphasis added).

2 Article 24 provides: “(1) In the cases covered by articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this convention. “(2) In the cases covered by article 17 the provisions of the preceeding paragraph shall also apply, without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights.”

3 Article 25 provides: “(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 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.”

4 Article 18 (damage to goods) and Article 19 (damage occasioned by delay) are not limited to accidents; any liability under local law for damages to goods or for delay is therefore explicitly preempted by Article 24(1). See Saks, 470 U. S., at 398.

5 See Gal v. Northern Mountain Helicopters Inc., Dkt. No. 3491834918, 1998 B. C. T. C. Lexis 1351, *2–*3 (July 22, 1998) (involving a helicopter crash and noting “the plaintiff invoked the Warsaw Convention claiming for injuries and loss arising from the accident”); Naval-Torres v. Northwest Airlines Inc., 159 D. L. R. (4th) 67, 74, 76 (1998) (stating that injury resulting from second-hand smoke constitutes an accident and expressly noting but declining to resolve the preemption issue decided today by this Court); Emery Air Freight Corp. v. Nerine Nurseries Ltd., [1997] 3 N. Z. L. R. 723, 727, 728 (involving damage to cargo, therefore covered under Article 18, and thus explicitly preempted under Article 24(1)); Seagate Technology Int’l v. Changi Int’l Airport Servs. Pte Ltd., [1997] 3 S. L. R. 1, 2 (same). While the Court is correct in its assertion that the British House of Lords assumed the terrorist attack in Sidhu v. British Airways plc, [1997] 1 All E.R. 193, was not an accident, see ante, at 17, I am puzzled why the Lords came to this conclusion. Courts both in this country and in our sister signatories have frequently found a hijacking to be an accident within the meaning of Article 17. See Saks, 470 U. S., at 405; Ayache v. Air-France, 38 Rev. franç. dr. aérien 450, 451 [1984] (T.G.I. Paris, 1st ch.,) (France); Air-France v. Consorts Telchner, 39 Rev. franç. dr. aérien 232, 240 [1984] (S. Ct. Israel).

6 The Convention does require such a result, for example, in the case of accidents resulting in no physical injury. I agree with the Court that, in that case, the victim’s remedies under local law are preempted by Article 24. See Eastern Airlines, Inc. v. Floyd, 499 U. S. 530, 552 (1991) . My interpretation does not, therefore, produce the anomaly identified ante, at 13. Since I believe that all personal injuries (whether physical or psychological) arising from accidents are covered by Article 17 and therefore preempted by Article 24(2), the “merely traumatized” plaintiff would not be free to sue outside the Convention.


TOP

Dissent

EL AL ISRAEL AIRLINES, LTD., PETITIONER v.
TSUI YUAN TSENG

on writ of certiorari to the united states court of appeals for the second circuit


[January 12, 1999]

Justice Stevens , dissenting.

My disagreement with the Court’s holding today has limited practical significance, not just because the issue has been conclusively determined for future cases by the recent amendment to the Warsaw Convention, see ante, at 2, 16–17, but also because it affects only a narrow category of past cases. The decision is nevertheless significant because, in the end, it rests on the novel premise that preemption analysis should be applied differently to treaties than to other kinds of federal law, see ante , at 17. Because I disagree with that premise, I shall briefly explain why I believe the Court has erred.

I agree with the Court that the drafters of the Convention intended that the treaty largely supplant local law. Article 24 preempts local law in three major categories: (1) personal injury claims arising out of an accident; 1 (2) claims for lost or damaged baggage; and (3) damage occasioned by transportation delays. 2 Those categories surely comprise the bulk of potential disputes between international air carriers and their passengers.

The Convention, however, does not preempt local law in cases arising out of “wilful misconduct.” Article 25 expressly provides that a carrier shall not be entitled to avail itself of the provisions of the Convention that “exclude or limit” its liability if its misconduct is willful. 3 Moreover, the question whether the carrier’s wrongful act “is considered to be equivalent to wilful misconduct” is determined by “the law of the court to which the case is submitted.” Ibid. Accordingly, the vast majority of the potential claims by passengers against international air carriers are either preempted by Article 24 or unequivocally governed by local law under Article 25.

Putting these cases aside, we are left with a narrow sliver of incidents involving personal injury that arise neither from an accident nor willful misconduct. 4 Although the drafters of the Treaty may not have realized that any such cases might arise, our construction of the term “accident” in Air France v. Saks, 470 U. S. 392, 405 (1985) , had the effect of either recognizing or creating this narrow band of cases. Frankly, I am not persuaded that this case belongs in this interstitial niche because I believe it should have been resolved by determining that petitioner’s alleged misconduct was either an accident within the meaning of Article 17, or involved willfulness as a matter of local law. Be that is it may, the parties have insisted that we decide the case on the assumption that it belongs in the sliver about which the treaty is silent.

This case and Saks therefore differ from each of the cases that the Court has cited in footnote 16 of its opinion to emphasize the importance of respecting “the treaty’s preemptive effect,” as none of those cases involved personal injury resulting from a nonaccident. Ante , at 18. 5 Given the unique character of this and the few other cases in the sliver, it is clear to me that the central purposes of the Convention will not be affected, whether we treat them like accident cases, which preempt local law, or like willful cases, which do not.

The overriding interest in achieving “ ‘uniformity of rules governing claims arising from international air transportation,’ ” ante , at 11, will be accommodated in the situations explicitly covered by Article 24, regardless of how the Court decides this case. In those circumstances, the Convention’s basic tradeoff between the carriers’ interest in avoiding unlimited liability and the passengers’ interest in obtaining compensation without proving fault will be fully achieved.

On the other hand, the interest in uniformity is disregarded in the category of cases that involve willful misconduct. Under the treaty, a reckless act or omission may constitute willful misconduct. See Koirala v. Thai Airways Int’l, Ltd , 126 F. 3d 1205, 1209–1210 (CA9 1997); Goldhirsch, supra n.1 at 121 (stating that most civil law jurisdictions have found that gross negligence satisfies Article 25). This broad definition increases the number of cases not preempted by the Convention. In these circumstances, the delegates at Warsaw did decide “to subject air carriers to the distinct, nonuniform liability rules of the individual signatory nations.” Ante, at 11.

Thus, the interest in uniformity would not be significantly impaired if the number of cases not preempted, like those involving willful misconduct, was slightly enlarged to encompass those relatively rare cases in which the injury resulted from neither an accident nor a willful wrong. That the interest in uniformity is accommodated in one category of cases but not the other simply raises, without resolving, the question whether the drafters of the treaty intended to treat personal injury nonaccident cases as though they involved accidents. A plaintiff in such a case, unlike those injured by an accident, receives no benefit from the treaty, and normally should not have a claim that is valid under local law preempted, unless the treaty expressly requires that result. 6

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, see ante, at 15, 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. See Medtronic, Inc. v. Lohr, 518 U. S. 470, 485 (1996) ; Department of Revenue of Ore. v. ACF Industries, Inc., 510 U. S. 332, 351 (1994) ; CSX Transp., Inc. v. Easterwood, 507 U. S. 658, 664 (1993) ; Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947) . For this reason, I respectfully dissent.


Notes

1 As we have already held, Article 17 only covers accidents, which we defined as “an unexpected or unusual event or happening that is external to the passenger.” Air France v. Saks, 470 U. S. 392, 405 (1985) . Thus, I believe Article 24(2)’s reference to Article 17 does not include nonaccidents. As a leading treatise states with regard to Article 17: “If the passenger’s lawyer does not want the Convention’s limits to be applicable, he must either: a) prove the Convention does not apply because his client was not a passenger in international transportation as defined in Article 1; or b) if the Convention is applicable, that the limits are unavailable because the carrier failed to deliver a ticket as provided by Article 3; or c) the carrier was guilty of wilful misconduct (Article 25) or d) there was no ‘accident’.)” L. Goldhirsch, The Warsaw Convention Annotated: A Legal Handbook 55 (1988) (emphasis added).

2 Article 24 provides: “(1) In the cases covered by articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this convention. “(2) In the cases covered by article 17 the provisions of the preceeding paragraph shall also apply, without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights.”

3 Article 25 provides: “(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 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.”

4 Article 18 (damage to goods) and Article 19 (damage occasioned by delay) are not limited to accidents; any liability under local law for damages to goods or for delay is therefore explicitly preempted by Article 24(1). See Saks, 470 U. S., at 398.

5 See Gal v. Northern Mountain Helicopters Inc., Dkt. No. 3491834918, 1998 B. C. T. C. Lexis 1351, *2–*3 (July 22, 1998) (involving a helicopter crash and noting “the plaintiff invoked the Warsaw Convention claiming for injuries and loss arising from the accident”); Naval-Torres v. Northwest Airlines Inc., 159 D. L. R. (4th) 67, 74, 76 (1998) (stating that injury resulting from second-hand smoke constitutes an accident and expressly noting but declining to resolve the preemption issue decided today by this Court); Emery Air Freight Corp. v. Nerine Nurseries Ltd., [1997] 3 N. Z. L. R. 723, 727, 728 (involving damage to cargo, therefore covered under Article 18, and thus explicitly preempted under Article 24(1)); Seagate Technology Int’l v. Changi Int’l Airport Servs. Pte Ltd., [1997] 3 S. L. R. 1, 2 (same). While the Court is correct in its assertion that the British House of Lords assumed the terrorist attack in Sidhu v. British Airways plc, [1997] 1 All E.R. 193, was not an accident, see ante, at 17, I am puzzled why the Lords came to this conclusion. Courts both in this country and in our sister signatories have frequently found a hijacking to be an accident within the meaning of Article 17. See Saks, 470 U. S., at 405; Ayache v. Air-France, 38 Rev. franç. dr. aérien 450, 451 [1984] (T.G.I. Paris, 1st ch.,) (France); Air-France v. Consorts Telchner, 39 Rev. franç. dr. aérien 232, 240 [1984] (S. Ct. Israel).

6 The Convention does require such a result, for example, in the case of accidents resulting in no physical injury. I agree with the Court that, in that case, the victim’s remedies under local law are preempted by Article 24. See Eastern Airlines, Inc. v. Floyd, 499 U. S. 530, 552 (1991) . My interpretation does not, therefore, produce the anomaly identified ante, at 13. Since I believe that all personal injuries (whether physical or psychological) arising from accidents are covered by Article 17 and therefore preempted by Article 24(2), the “merely traumatized” plaintiff would not be free to sue outside the Convention.


TOP

Dissent

EL AL ISRAEL AIRLINES, LTD., PETITIONER v.
TSUI YUAN TSENG

on writ of certiorari to the united states court of appeals for the second circuit


[January 12, 1999]

Justice Stevens , dissenting.

My disagreement with the Court’s holding today has limited practical significance, not just because the issue has been conclusively determined for future cases by the recent amendment to the Warsaw Convention, see ante, at 2, 16–17, but also because it affects only a narrow category of past cases. The decision is nevertheless significant because, in the end, it rests on the novel premise that preemption analysis should be applied differently to treaties than to other kinds of federal law, see ante , at 17. Because I disagree with that premise, I shall briefly explain why I believe the Court has erred.

I agree with the Court that the drafters of the Convention intended that the treaty largely supplant local law. Article 24 preempts local law in three major categories: (1) personal injury claims arising out of an accident; 1 (2) claims for lost or damaged baggage; and (3) damage occasioned by transportation delays. 2 Those categories surely comprise the bulk of potential disputes between international air carriers and their passengers.

The Convention, however, does not preempt local law in cases arising out of “wilful misconduct.” Article 25 expressly provides that a carrier shall not be entitled to avail itself of the provisions of the Convention that “exclude or limit” its liability if its misconduct is willful. 3 Moreover, the question whether the carrier’s wrongful act “is considered to be equivalent to wilful misconduct” is determined by “the law of the court to which the case is submitted.” Ibid. Accordingly, the vast majority of the potential claims by passengers against international air carriers are either preempted by Article 24 or unequivocally governed by local law under Article 25.

Putting these cases aside, we are left with a narrow sliver of incidents involving personal injury that arise neither from an accident nor willful misconduct. 4 Although the drafters of the Treaty may not have realized that any such cases might arise, our construction of the term “accident” in Air France v. Saks, 470 U. S. 392, 405 (1985) , had the effect of either recognizing or creating this narrow band of cases. Frankly, I am not persuaded that this case belongs in this interstitial niche because I believe it should have been resolved by determining that petitioner’s alleged misconduct was either an accident within the meaning of Article 17, or involved willfulness as a matter of local law. Be that is it may, the parties have insisted that we decide the case on the assumption that it belongs in the sliver about which the treaty is silent.

This case and Saks therefore differ from each of the cases that the Court has cited in footnote 16 of its opinion to emphasize the importance of respecting “the treaty’s preemptive effect,” as none of those cases involved personal injury resulting from a nonaccident. Ante , at 18. 5 Given the unique character of this and the few other cases in the sliver, it is clear to me that the central purposes of the Convention will not be affected, whether we treat them like accident cases, which preempt local law, or like willful cases, which do not.

The overriding interest in achieving “ ‘uniformity of rules governing claims arising from international air transportation,’ ” ante , at 11, will be accommodated in the situations explicitly covered by Article 24, regardless of how the Court decides this case. In those circumstances, the Convention’s basic tradeoff between the carriers’ interest in avoiding unlimited liability and the passengers’ interest in obtaining compensation without proving fault will be fully achieved.

On the other hand, the interest in uniformity is disregarded in the category of cases that involve willful misconduct. Under the treaty, a reckless act or omission may constitute willful misconduct. See Koirala v. Thai Airways Int’l, Ltd , 126 F. 3d 1205, 1209–1210 (CA9 1997); Goldhirsch, supra n.1 at 121 (stating that most civil law jurisdictions have found that gross negligence satisfies Article 25). This broad definition increases the number of cases not preempted by the Convention. In these circumstances, the delegates at Warsaw did decide “to subject air carriers to the distinct, nonuniform liability rules of the individual signatory nations.” Ante, at 11.

Thus, the interest in uniformity would not be significantly impaired if the number of cases not preempted, like those involving willful misconduct, was slightly enlarged to encompass those relatively rare cases in which the injury resulted from neither an accident nor a willful wrong. That the interest in uniformity is accommodated in one category of cases but not the other simply raises, without resolving, the question whether the drafters of the treaty intended to treat personal injury nonaccident cases as though they involved accidents. A plaintiff in such a case, unlike those injured by an accident, receives no benefit from the treaty, and normally should not have a claim that is valid under local law preempted, unless the treaty expressly requires that result. 6

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, see ante, at 15, 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. See Medtronic, Inc. v. Lohr, 518 U. S. 470, 485 (1996) ; Department of Revenue of Ore. v. ACF Industries, Inc., 510 U. S. 332, 351 (1994) ; CSX Transp., Inc. v. Easterwood, 507 U. S. 658, 664 (1993) ; Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947) . For this reason, I respectfully dissent.


Notes

1 As we have already held, Article 17 only covers accidents, which we defined as “an unexpected or unusual event or happening that is external to the passenger.” Air France v. Saks, 470 U. S. 392, 405 (1985) . Thus, I believe Article 24(2)’s reference to Article 17 does not include nonaccidents. As a leading treatise states with regard to Article 17: “If the passenger’s lawyer does not want the Convention’s limits to be applicable, he must either: a) prove the Convention does not apply because his client was not a passenger in international transportation as defined in Article 1; or b) if the Convention is applicable, that the limits are unavailable because the carrier failed to deliver a ticket as provided by Article 3; or c) the carrier was guilty of wilful misconduct (Article 25) or d) there was no ‘accident’.)” L. Goldhirsch, The Warsaw Convention Annotated: A Legal Handbook 55 (1988) (emphasis added).

2 Article 24 provides: “(1) In the cases covered by articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this convention. “(2) In the cases covered by article 17 the provisions of the preceeding paragraph shall also apply, without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights.”

3 Article 25 provides: “(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 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.”

4 Article 18 (damage to goods) and Article 19 (damage occasioned by delay) are not limited to accidents; any liability under local law for damages to goods or for delay is therefore explicitly preempted by Article 24(1). See Saks, 470 U. S., at 398.

5 See Gal v. Northern Mountain Helicopters Inc., Dkt. No. 3491834918, 1998 B. C. T. C. Lexis 1351, *2–*3 (July 22, 1998) (involving a helicopter crash and noting “the plaintiff invoked the Warsaw Convention claiming for injuries and loss arising from the accident”); Naval-Torres v. Northwest Airlines Inc., 159 D. L. R. (4th) 67, 74, 76 (1998) (stating that injury resulting from second-hand smoke constitutes an accident and expressly noting but declining to resolve the preemption issue decided today by this Court); Emery Air Freight Corp. v. Nerine Nurseries Ltd., [1997] 3 N. Z. L. R. 723, 727, 728 (involving damage to cargo, therefore covered under Article 18, and thus explicitly preempted under Article 24(1)); Seagate Technology Int’l v. Changi Int’l Airport Servs. Pte Ltd., [1997] 3 S. L. R. 1, 2 (same). While the Court is correct in its assertion that the British House of Lords assumed the terrorist attack in Sidhu v. British Airways plc, [1997] 1 All E.R. 193, was not an accident, see ante, at 17, I am puzzled why the Lords came to this conclusion. Courts both in this country and in our sister signatories have frequently found a hijacking to be an accident within the meaning of Article 17. See Saks, 470 U. S., at 405; Ayache v. Air-France, 38 Rev. franç. dr. aérien 450, 451 [1984] (T.G.I. Paris, 1st ch.,) (France); Air-France v. Consorts Telchner, 39 Rev. franç. dr. aérien 232, 240 [1984] (S. Ct. Israel).

6 The Convention does require such a result, for example, in the case of accidents resulting in no physical injury. I agree with the Court that, in that case, the victim’s remedies under local law are preempted by Article 24. See Eastern Airlines, Inc. v. Floyd, 499 U. S. 530, 552 (1991) . My interpretation does not, therefore, produce the anomaly identified ante, at 13. Since I believe that all personal injuries (whether physical or psychological) arising from accidents are covered by Article 17 and therefore preempted by Article 24(2), the “merely traumatized” plaintiff would not be free to sue outside the Convention.


TOP

Dissent

EL AL ISRAEL AIRLINES, LTD., PETITIONER v.
TSUI YUAN TSENG

on writ of certiorari to the united states court of appeals for the second circuit


[January 12, 1999]

Justice Stevens , dissenting.

My disagreement with the Court’s holding today has limited practical significance, not just because the issue has been conclusively determined for future cases by the recent amendment to the Warsaw Convention, see ante, at 2, 16–17, but also because it affects only a narrow category of past cases. The decision is nevertheless significant because, in the end, it rests on the novel premise that preemption analysis should be applied differently to treaties than to other kinds of federal law, see ante , at 17. Because I disagree with that premise, I shall briefly explain why I believe the Court has erred.

I agree with the Court that the drafters of the Convention intended that the treaty largely supplant local law. Article 24 preempts local law in three major categories: (1) personal injury claims arising out of an accident; 1 (2) claims for lost or damaged baggage; and (3) damage occasioned by transportation delays. 2 Those categories surely comprise the bulk of potential disputes between international air carriers and their passengers.

The Convention, however, does not preempt local law in cases arising out of “wilful misconduct.” Article 25 expressly provides that a carrier shall not be entitled to avail itself of the provisions of the Convention that “exclude or limit” its liability if its misconduct is willful. 3 Moreover, the question whether the carrier’s wrongful act “is considered to be equivalent to wilful misconduct” is determined by “the law of the court to which the case is submitted.” Ibid. Accordingly, the vast majority of the potential claims by passengers against international air carriers are either preempted by Article 24 or unequivocally governed by local law under Article 25.

Putting these cases aside, we are left with a narrow sliver of incidents involving personal injury that arise neither from an accident nor willful misconduct. 4 Although the drafters of the Treaty may not have realized that any such cases might arise, our construction of the term “accident” in Air France v. Saks, 470 U. S. 392, 405 (1985) , had the effect of either recognizing or creating this narrow band of cases. Frankly, I am not persuaded that this case belongs in this interstitial niche because I believe it should have been resolved by determining that petitioner’s alleged misconduct was either an accident within the meaning of Article 17, or involved willfulness as a matter of local law. Be that is it may, the parties have insisted that we decide the case on the assumption that it belongs in the sliver about which the treaty is silent.

This case and Saks therefore differ from each of the cases that the Court has cited in footnote 16 of its opinion to emphasize the importance of respecting “the treaty’s preemptive effect,” as none of those cases involved personal injury resulting from a nonaccident. Ante , at 18. 5 Given the unique character of this and the few other cases in the sliver, it is clear to me that the central purposes of the Convention will not be affected, whether we treat them like accident cases, which preempt local law, or like willful cases, which do not.

The overriding interest in achieving “ ‘uniformity of rules governing claims arising from international air transportation,’ ” ante , at 11, will be accommodated in the situations explicitly covered by Article 24, regardless of how the Court decides this case. In those circumstances, the Convention’s basic tradeoff between the carriers’ interest in avoiding unlimited liability and the passengers’ interest in obtaining compensation without proving fault will be fully achieved.

On the other hand, the interest in uniformity is disregarded in the category of cases that involve willful misconduct. Under the treaty, a reckless act or omission may constitute willful misconduct. See Koirala v. Thai Airways Int’l, Ltd , 126 F. 3d 1205, 1209–1210 (CA9 1997); Goldhirsch, supra n.1 at 121 (stating that most civil law jurisdictions have found that gross negligence satisfies Article 25). This broad definition increases the number of cases not preempted by the Convention. In these circumstances, the delegates at Warsaw did decide “to subject air carriers to the distinct, nonuniform liability rules of the individual signatory nations.” Ante, at 11.

Thus, the interest in uniformity would not be significantly impaired if the number of cases not preempted, like those involving willful misconduct, was slightly enlarged to encompass those relatively rare cases in which the injury resulted from neither an accident nor a willful wrong. That the interest in uniformity is accommodated in one category of cases but not the other simply raises, without resolving, the question whether the drafters of the treaty intended to treat personal injury nonaccident cases as though they involved accidents. A plaintiff in such a case, unlike those injured by an accident, receives no benefit from the treaty, and normally should not have a claim that is valid under local law preempted, unless the treaty expressly requires that result. 6

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, see ante, at 15, 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. See Medtronic, Inc. v. Lohr, 518 U. S. 470, 485 (1996) ; Department of Revenue of Ore. v. ACF Industries, Inc., 510 U. S. 332, 351 (1994) ; CSX Transp., Inc. v. Easterwood, 507 U. S. 658, 664 (1993) ; Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947) . For this reason, I respectfully dissent.


Notes

1 As we have already held, Article 17 only covers accidents, which we defined as “an unexpected or unusual event or happening that is external to the passenger.” Air France v. Saks, 470 U. S. 392, 405 (1985) . Thus, I believe Article 24(2)’s reference to Article 17 does not include nonaccidents. As a leading treatise states with regard to Article 17: “If the passenger’s lawyer does not want the Convention’s limits to be applicable, he must either: a) prove the Convention does not apply because his client was not a passenger in international transportation as defined in Article 1; or b) if the Convention is applicable, that the limits are unavailable because the carrier failed to deliver a ticket as provided by Article 3; or c) the carrier was guilty of wilful misconduct (Article 25) or d) there was no ‘accident’.)” L. Goldhirsch, The Warsaw Convention Annotated: A Legal Handbook 55 (1988) (emphasis added).

2 Article 24 provides: “(1) In the cases covered by articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this convention. “(2) In the cases covered by article 17 the provisions of the preceeding paragraph shall also apply, without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights.”

3 Article 25 provides: “(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 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.”

4 Article 18 (damage to goods) and Article 19 (damage occasioned by delay) are not limited to accidents; any liability under local law for damages to goods or for delay is therefore explicitly preempted by Article 24(1). See Saks, 470 U. S., at 398.

5 See Gal v. Northern Mountain Helicopters Inc., Dkt. No. 3491834918, 1998 B. C. T. C. Lexis 1351, *2–*3 (July 22, 1998) (involving a helicopter crash and noting “the plaintiff invoked the Warsaw Convention claiming for injuries and loss arising from the accident”); Naval-Torres v. Northwest Airlines Inc., 159 D. L. R. (4th) 67, 74, 76 (1998) (stating that injury resulting from second-hand smoke constitutes an accident and expressly noting but declining to resolve the preemption issue decided today by this Court); Emery Air Freight Corp. v. Nerine Nurseries Ltd., [1997] 3 N. Z. L. R. 723, 727, 728 (involving damage to cargo, therefore covered under Article 18, and thus explicitly preempted under Article 24(1)); Seagate Technology Int’l v. Changi Int’l Airport Servs. Pte Ltd., [1997] 3 S. L. R. 1, 2 (same). While the Court is correct in its assertion that the British House of Lords assumed the terrorist attack in Sidhu v. British Airways plc, [1997] 1 All E.R. 193, was not an accident, see ante, at 17, I am puzzled why the Lords came to this conclusion. Courts both in this country and in our sister signatories have frequently found a hijacking to be an accident within the meaning of Article 17. See Saks, 470 U. S., at 405; Ayache v. Air-France, 38 Rev. franç. dr. aérien 450, 451 [1984] (T.G.I. Paris, 1st ch.,) (France); Air-France v. Consorts Telchner, 39 Rev. franç. dr. aérien 232, 240 [1984] (S. Ct. Israel).

6 The Convention does require such a result, for example, in the case of accidents resulting in no physical injury. I agree with the Court that, in that case, the victim’s remedies under local law are preempted by Article 24. See Eastern Airlines, Inc. v. Floyd, 499 U. S. 530, 552 (1991) . My interpretation does not, therefore, produce the anomaly identified ante, at 13. Since I believe that all personal injuries (whether physical or psychological) arising from accidents are covered by Article 17 and therefore preempted by Article 24(2), the “merely traumatized” plaintiff would not be free to sue outside the Convention.


TOP

Dissent

EL AL ISRAEL AIRLINES, LTD., PETITIONER v.
TSUI YUAN TSENG

on writ of certiorari to the united states court of appeals for the second circuit


[January 12, 1999]

Justice Stevens , dissenting.

My disagreement with the Court’s holding today has limited practical significance, not just because the issue has been conclusively determined for future cases by the recent amendment to the Warsaw Convention, see ante, at 2, 16–17, but also because it affects only a narrow category of past cases. The decision is nevertheless significant because, in the end, it rests on the novel premise that preemption analysis should be applied differently to treaties than to other kinds of federal law, see ante , at 17. Because I disagree with that premise, I shall briefly explain why I believe the Court has erred.

I agree with the Court that the drafters of the Convention intended that the treaty largely supplant local law. Article 24 preempts local law in three major categories: (1) personal injury claims arising out of an accident; 1 (2) claims for lost or damaged baggage; and (3) damage occasioned by transportation delays. 2 Those categories surely comprise the bulk of potential disputes between international air carriers and their passengers.

The Convention, however, does not preempt local law in cases arising out of “wilful misconduct.” Article 25 expressly provides that a carrier shall not be entitled to avail itself of the provisions of the Convention that “exclude or limit” its liability if its misconduct is willful. 3 Moreover, the question whether the carrier’s wrongful act “is considered to be equivalent to wilful misconduct” is determined by “the law of the court to which the case is submitted.” Ibid. Accordingly, the vast majority of the potential claims by passengers against international air carriers are either preempted by Article 24 or unequivocally governed by local law under Article 25.

Putting these cases aside, we are left with a narrow sliver of incidents involving personal injury that arise neither from an accident nor willful misconduct. 4 Although the drafters of the Treaty may not have realized that any such cases might arise, our construction of the term “accident” in Air France v. Saks, 470 U. S. 392, 405 (1985) , had the effect of either recognizing or creating this narrow band of cases. Frankly, I am not persuaded that this case belongs in this interstitial niche because I believe it should have been resolved by determining that petitioner’s alleged misconduct was either an accident within the meaning of Article 17, or involved willfulness as a matter of local law. Be that is it may, the parties have insisted that we decide the case on the assumption that it belongs in the sliver about which the treaty is silent.

This case and Saks therefore differ from each of the cases that the Court has cited in footnote 16 of its opinion to emphasize the importance of respecting “the treaty’s preemptive effect,” as none of those cases involved personal injury resulting from a nonaccident. Ante , at 18. 5 Given the unique character of this and the few other cases in the sliver, it is clear to me that the central purposes of the Convention will not be affected, whether we treat them like accident cases, which preempt local law, or like willful cases, which do not.

The overriding interest in achieving “ ‘uniformity of rules governing claims arising from international air transportation,’ ” ante , at 11, will be accommodated in the situations explicitly covered by Article 24, regardless of how the Court decides this case. In those circumstances, the Convention’s basic tradeoff between the carriers’ interest in avoiding unlimited liability and the passengers’ interest in obtaining compensation without proving fault will be fully achieved.

On the other hand, the interest in uniformity is disregarded in the category of cases that involve willful misconduct. Under the treaty, a reckless act or omission may constitute willful misconduct. See Koirala v. Thai Airways Int’l, Ltd , 126 F. 3d 1205, 1209–1210 (CA9 1997); Goldhirsch, supra n.1 at 121 (stating that most civil law jurisdictions have found that gross negligence satisfies Article 25). This broad definition increases the number of cases not preempted by the Convention. In these circumstances, the delegates at Warsaw did decide “to subject air carriers to the distinct, nonuniform liability rules of the individual signatory nations.” Ante, at 11.

Thus, the interest in uniformity would not be significantly impaired if the number of cases not preempted, like those involving willful misconduct, was slightly enlarged to encompass those relatively rare cases in which the injury resulted from neither an accident nor a willful wrong. That the interest in uniformity is accommodated in one category of cases but not the other simply raises, without resolving, the question whether the drafters of the treaty intended to treat personal injury nonaccident cases as though they involved accidents. A plaintiff in such a case, unlike those injured by an accident, receives no benefit from the treaty, and normally should not have a claim that is valid under local law preempted, unless the treaty expressly requires that result. 6

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, see ante, at 15, 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. See Medtronic, Inc. v. Lohr, 518 U. S. 470, 485 (1996) ; Department of Revenue of Ore. v. ACF Industries, Inc., 510 U. S. 332, 351 (1994) ; CSX Transp., Inc. v. Easterwood, 507 U. S. 658, 664 (1993) ; Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947) . For this reason, I respectfully dissent.


Notes

1 As we have already held, Article 17 only covers accidents, which we defined as “an unexpected or unusual event or happening that is external to the passenger.” Air France v. Saks, 470 U. S. 392, 405 (1985) . Thus, I believe Article 24(2)’s reference to Article 17 does not include nonaccidents. As a leading treatise states with regard to Article 17: “If the passenger’s lawyer does not want the Convention’s limits to be applicable, he must either: a) prove the Convention does not apply because his client was not a passenger in international transportation as defined in Article 1; or b) if the Convention is applicable, that the limits are unavailable because the carrier failed to deliver a ticket as provided by Article 3; or c) the carrier was guilty of wilful misconduct (Article 25) or d) there was no ‘accident’.)” L. Goldhirsch, The Warsaw Convention Annotated: A Legal Handbook 55 (1988) (emphasis added).

2 Article 24 provides: “(1) In the cases covered by articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this convention. “(2) In the cases covered by article 17 the provisions of the preceeding paragraph shall also apply, without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights.”

3 Article 25 provides: “(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 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.”

4 Article 18 (damage to goods) and Article 19 (damage occasioned by delay) are not limited to accidents; any liability under local law for damages to goods or for delay is therefore explicitly preempted by Article 24(1). See Saks, 470 U. S., at 398.

5 See Gal v. Northern Mountain Helicopters Inc., Dkt. No. 3491834918, 1998 B. C. T. C. Lexis 1351, *2–*3 (July 22, 1998) (involving a helicopter crash and noting “the plaintiff invoked the Warsaw Convention claiming for injuries and loss arising from the accident”); Naval-Torres v. Northwest Airlines Inc., 159 D. L. R. (4th) 67, 74, 76 (1998) (stating that injury resulting from second-hand smoke constitutes an accident and expressly noting but declining to resolve the preemption issue decided today by this Court); Emery Air Freight Corp. v. Nerine Nurseries Ltd., [1997] 3 N. Z. L. R. 723, 727, 728 (involving damage to cargo, therefore covered under Article 18, and thus explicitly preempted under Article 24(1)); Seagate Technology Int’l v. Changi Int’l Airport Servs. Pte Ltd., [1997] 3 S. L. R. 1, 2 (same). While the Court is correct in its assertion that the British House of Lords assumed the terrorist attack in Sidhu v. British Airways plc, [1997] 1 All E.R. 193, was not an accident, see ante, at 17, I am puzzled why the Lords came to this conclusion. Courts both in this country and in our sister signatories have frequently found a hijacking to be an accident within the meaning of Article 17. See Saks, 470 U. S., at 405; Ayache v. Air-France, 38 Rev. franç. dr. aérien 450, 451 [1984] (T.G.I. Paris, 1st ch.,) (France); Air-France v. Consorts Telchner, 39 Rev. franç. dr. aérien 232, 240 [1984] (S. Ct. Israel).

6 The Convention does require such a result, for example, in the case of accidents resulting in no physical injury. I agree with the Court that, in that case, the victim’s remedies under local law are preempted by Article 24. See Eastern Airlines, Inc. v. Floyd, 499 U. S. 530, 552 (1991) . My interpretation does not, therefore, produce the anomaly identified ante, at 13. Since I believe that all personal injuries (whether physical or psychological) arising from accidents are covered by Article 17 and therefore preempted by Article 24(2), the “merely traumatized” plaintiff would not be free to sue outside the Convention.


TOP

Dissent

EL AL ISRAEL AIRLINES, LTD., PETITIONER v.
TSUI YUAN TSENG

on writ of certiorari to the united states court of appeals for the second circuit


[January 12, 1999]

Justice Stevens , dissenting.

My disagreement with the Court’s holding today has limited practical significance, not just because the issue has been conclusively determined for future cases by the recent amendment to the Warsaw Convention, see ante, at 2, 16–17, but also because it affects only a narrow category of past cases. The decision is nevertheless significant because, in the end, it rests on the novel premise that preemption analysis should be applied differently to treaties than to other kinds of federal law, see ante , at 17. Because I disagree with that premise, I shall briefly explain why I believe the Court has erred.

I agree with the Court that the drafters of the Convention intended that the treaty largely supplant local law. Article 24 preempts local law in three major categories: (1) personal injury claims arising out of an accident; 1 (2) claims for lost or damaged baggage; and (3) damage occasioned by transportation delays. 2 Those categories surely comprise the bulk of potential disputes between international air carriers and their passengers.

The Convention, however, does not preempt local law in cases arising out of “wilful misconduct.” Article 25 expressly provides that a carrier shall not be entitled to avail itself of the provisions of the Convention that “exclude or limit” its liability if its misconduct is willful. 3 Moreover, the question whether the carrier’s wrongful act “is considered to be equivalent to wilful misconduct” is determined by “the law of the court to which the case is submitted.” Ibid. Accordingly, the vast majority of the potential claims by passengers against international air carriers are either preempted by Article 24 or unequivocally governed by local law under Article 25.

Putting these cases aside, we are left with a narrow sliver of incidents involving personal injury that arise neither from an accident nor willful misconduct. 4 Although the drafters of the Treaty may not have realized that any such cases might arise, our construction of the term “accident” in Air France v. Saks, 470 U. S. 392, 405 (1985) , had the effect of either recognizing or creating this narrow band of cases. Frankly, I am not persuaded that this case belongs in this interstitial niche because I believe it should have been resolved by determining that petitioner’s alleged misconduct was either an accident within the meaning of Article 17, or involved willfulness as a matter of local law. Be that is it may, the parties have insisted that we decide the case on the assumption that it belongs in the sliver about which the treaty is silent.

This case and Saks therefore differ from each of the cases that the Court has cited in footnote 16 of its opinion to emphasize the importance of respecting “the treaty’s preemptive effect,” as none of those cases involved personal injury resulting from a nonaccident. Ante , at 18. 5 Given the unique character of this and the few other cases in the sliver, it is clear to me that the central purposes of the Convention will not be affected, whether we treat them like accident cases, which preempt local law, or like willful cases, which do not.

The overriding interest in achieving “ ‘uniformity of rules governing claims arising from international air transportation,’ ” ante , at 11, will be accommodated in the situations explicitly covered by Article 24, regardless of how the Court decides this case. In those circumstances, the Convention’s basic tradeoff between the carriers’ interest in avoiding unlimited liability and the passengers’ interest in obtaining compensation without proving fault will be fully achieved.

On the other hand, the interest in uniformity is disregarded in the category of cases that involve willful misconduct. Under the treaty, a reckless act or omission may constitute willful misconduct. See Koirala v. Thai Airways Int’l, Ltd , 126 F. 3d 1205, 1209–1210 (CA9 1997); Goldhirsch, supra n.1 at 121 (stating that most civil law jurisdictions have found that gross negligence satisfies Article 25). This broad definition increases the number of cases not preempted by the Convention. In these circumstances, the delegates at Warsaw did decide “to subject air carriers to the distinct, nonuniform liability rules of the individual signatory nations.” Ante, at 11.

Thus, the interest in uniformity would not be significantly impaired if the number of cases not preempted, like those involving willful misconduct, was slightly enlarged to encompass those relatively rare cases in which the injury resulted from neither an accident nor a willful wrong. That the interest in uniformity is accommodated in one category of cases but not the other simply raises, without resolving, the question whether the drafters of the treaty intended to treat personal injury nonaccident cases as though they involved accidents. A plaintiff in such a case, unlike those injured by an accident, receives no benefit from the treaty, and normally should not have a claim that is valid under local law preempted, unless the treaty expressly requires that result. 6

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, see ante, at 15, 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. See Medtronic, Inc. v. Lohr, 518 U. S. 470, 485 (1996) ; Department of Revenue of Ore. v. ACF Industries, Inc., 510 U. S. 332, 351 (1994) ; CSX Transp., Inc. v. Easterwood, 507 U. S. 658, 664 (1993) ; Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947) . For this reason, I respectfully dissent.


Notes

1 As we have already held, Article 17 only covers accidents, which we defined as “an unexpected or unusual event or happening that is external to the passenger.” Air France v. Saks, 470 U. S. 392, 405 (1985) . Thus, I believe Article 24(2)’s reference to Article 17 does not include nonaccidents. As a leading treatise states with regard to Article 17: “If the passenger’s lawyer does not want the Convention’s limits to be applicable, he must either: a) prove the Convention does not apply because his client was not a passenger in international transportation as defined in Article 1; or b) if the Convention is applicable, that the limits are unavailable because the carrier failed to deliver a ticket as provided by Article 3; or c) the carrier was guilty of wilful misconduct (Article 25) or d) there was no ‘accident’.)” L. Goldhirsch, The Warsaw Convention Annotated: A Legal Handbook 55 (1988) (emphasis added).

2 Article 24 provides: “(1) In the cases covered by articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this convention. “(2) In the cases covered by article 17 the provisions of the preceeding paragraph shall also apply, without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights.”

3 Article 25 provides: “(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 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.”

4 Article 18 (damage to goods) and Article 19 (damage occasioned by delay) are not limited to accidents; any liability under local law for damages to goods or for delay is therefore explicitly preempted by Article 24(1). See Saks, 470 U. S., at 398.

5 See Gal v. Northern Mountain Helicopters Inc., Dkt. No. 3491834918, 1998 B. C. T. C. Lexis 1351, *2–*3 (July 22, 1998) (involving a helicopter crash and noting “the plaintiff invoked the Warsaw Convention claiming for injuries and loss arising from the accident”); Naval-Torres v. Northwest Airlines Inc., 159 D. L. R. (4th) 67, 74, 76 (1998) (stating that injury resulting from second-hand smoke constitutes an accident and expressly noting but declining to resolve the preemption issue decided today by this Court); Emery Air Freight Corp. v. Nerine Nurseries Ltd., [1997] 3 N. Z. L. R. 723, 727, 728 (involving damage to cargo, therefore covered under Article 18, and thus explicitly preempted under Article 24(1)); Seagate Technology Int’l v. Changi Int’l Airport Servs. Pte Ltd., [1997] 3 S. L. R. 1, 2 (same). While the Court is correct in its assertion that the British House of Lords assumed the terrorist attack in Sidhu v. British Airways plc, [1997] 1 All E.R. 193, was not an accident, see ante, at 17, I am puzzled why the Lords came to this conclusion. Courts both in this country and in our sister signatories have frequently found a hijacking to be an accident within the meaning of Article 17. See Saks, 470 U. S., at 405; Ayache v. Air-France, 38 Rev. franç. dr. aérien 450, 451 [1984] (T.G.I. Paris, 1st ch.,) (France); Air-France v. Consorts Telchner, 39 Rev. franç. dr. aérien 232, 240 [1984] (S. Ct. Israel).

6 The Convention does require such a result, for example, in the case of accidents resulting in no physical injury. I agree with the Court that, in that case, the victim’s remedies under local law are preempted by Article 24. See Eastern Airlines, Inc. v. Floyd, 499 U. S. 530, 552 (1991) . My interpretation does not, therefore, produce the anomaly identified ante, at 13. Since I believe that all personal injuries (whether physical or psychological) arising from accidents are covered by Article 17 and therefore preempted by Article 24(2), the “merely traumatized” plaintiff would not be free to sue outside the Convention.


TOP

Dissent

EL AL ISRAEL AIRLINES, LTD., PETITIONER v.
TSUI YUAN TSENG

on writ of certiorari to the united states court of appeals for the second circuit


[January 12, 1999]

Justice Stevens , dissenting.

My disagreement with the Court’s holding today has limited practical significance, not just because the issue has been conclusively determined for future cases by the recent amendment to the Warsaw Convention, see ante, at 2, 16–17, but also because it affects only a narrow category of past cases. The decision is nevertheless significant because, in the end, it rests on the novel premise that preemption analysis should be applied differently to treaties than to other kinds of federal law, see ante , at 17. Because I disagree with that premise, I shall briefly explain why I believe the Court has erred.

I agree with the Court that the drafters of the Convention intended that the treaty largely supplant local law. Article 24 preempts local law in three major categories: (1) personal injury claims arising out of an accident; 1 (2) claims for lost or damaged baggage; and (3) damage occasioned by transportation delays. 2 Those categories surely comprise the bulk of potential disputes between international air carriers and their passengers.

The Convention, however, does not preempt local law in cases arising out of “wilful misconduct.” Article 25 expressly provides that a carrier shall not be entitled to avail itself of the provisions of the Convention that “exclude or limit” its liability if its misconduct is willful. 3 Moreover, the question whether the carrier’s wrongful act “is considered to be equivalent to wilful misconduct” is determined by “the law of the court to which the case is submitted.” Ibid. Accordingly, the vast majority of the potential claims by passengers against international air carriers are either preempted by Article 24 or unequivocally governed by local law under Article 25.

Putting these cases aside, we are left with a narrow sliver of incidents involving personal injury that arise neither from an accident nor willful misconduct. 4 Although the drafters of the Treaty may not have realized that any such cases might arise, our construction of the term “accident” in Air France v. Saks, 470 U. S. 392, 405 (1985) , had the effect of either recognizing or creating this narrow band of cases. Frankly, I am not persuaded that this case belongs in this interstitial niche because I believe it should have been resolved by determining that petitioner’s alleged misconduct was either an accident within the meaning of Article 17, or involved willfulness as a matter of local law. Be that is it may, the parties have insisted that we decide the case on the assumption that it belongs in the sliver about which the treaty is silent.

This case and Saks therefore differ from each of the cases that the Court has cited in footnote 16 of its opinion to emphasize the importance of respecting “the treaty’s preemptive effect,” as none of those cases involved personal injury resulting from a nonaccident. Ante , at 18. 5 Given the unique character of this and the few other cases in the sliver, it is clear to me that the central purposes of the Convention will not be affected, whether we treat them like accident cases, which preempt local law, or like willful cases, which do not.

The overriding interest in achieving “ ‘uniformity of rules governing claims arising from international air transportation,’ ” ante , at 11, will be accommodated in the situations explicitly covered by Article 24, regardless of how the Court decides this case. In those circumstances, the Convention’s basic tradeoff between the carriers’ interest in avoiding unlimited liability and the passengers’ interest in obtaining compensation without proving fault will be fully achieved.

On the other hand, the interest in uniformity is disregarded in the category of cases that involve willful misconduct. Under the treaty, a reckless act or omission may constitute willful misconduct. See Koirala v. Thai Airways Int’l, Ltd , 126 F. 3d 1205, 1209–1210 (CA9 1997); Goldhirsch, supra n.1 at 121 (stating that most civil law jurisdictions have found that gross negligence satisfies Article 25). This broad definition increases the number of cases not preempted by the Convention. In these circumstances, the delegates at Warsaw did decide “to subject air carriers to the distinct, nonuniform liability rules of the individual signatory nations.” Ante, at 11.

Thus, the interest in uniformity would not be significantly impaired if the number of cases not preempted, like those involving willful misconduct, was slightly enlarged to encompass those relatively rare cases in which the injury resulted from neither an accident nor a willful wrong. That the interest in uniformity is accommodated in one category of cases but not the other simply raises, without resolving, the question whether the drafters of the treaty intended to treat personal injury nonaccident cases as though they involved accidents. A plaintiff in such a case, unlike those injured by an accident, receives no benefit from the treaty, and normally should not have a claim that is valid under local law preempted, unless the treaty expressly requires that result. 6

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, see ante, at 15, 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. See Medtronic, Inc. v. Lohr, 518 U. S. 470, 485 (1996) ; Department of Revenue of Ore. v. ACF Industries, Inc., 510 U. S. 332, 351 (1994) ; CSX Transp., Inc. v. Easterwood, 507 U. S. 658, 664 (1993) ; Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947) . For this reason, I respectfully dissent.


Notes

1 As we have already held, Article 17 only covers accidents, which we defined as “an unexpected or unusual event or happening that is external to the passenger.” Air France v. Saks, 470 U. S. 392, 405 (1985) . Thus, I believe Article 24(2)’s reference to Article 17 does not include nonaccidents. As a leading treatise states with regard to Article 17: “If the passenger’s lawyer does not want the Convention’s limits to be applicable, he must either: a) prove the Convention does not apply because his client was not a passenger in international transportation as defined in Article 1; or b) if the Convention is applicable, that the limits are unavailable because the carrier failed to deliver a ticket as provided by Article 3; or c) the carrier was guilty of wilful misconduct (Article 25) or d) there was no ‘accident’.)” L. Goldhirsch, The Warsaw Convention Annotated: A Legal Handbook 55 (1988) (emphasis added).

2 Article 24 provides: “(1) In the cases covered by articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this convention. “(2) In the cases covered by article 17 the provisions of the preceeding paragraph shall also apply, without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights.”

3 Article 25 provides: “(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 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.”

4 Article 18 (damage to goods) and Article 19 (damage occasioned by delay) are not limited to accidents; any liability under local law for damages to goods or for delay is therefore explicitly preempted by Article 24(1). See Saks, 470 U. S., at 398.

5 See Gal v. Northern Mountain Helicopters Inc., Dkt. No. 3491834918, 1998 B. C. T. C. Lexis 1351, *2–*3 (July 22, 1998) (involving a helicopter crash and noting “the plaintiff invoked the Warsaw Convention claiming for injuries and loss arising from the accident”); Naval-Torres v. Northwest Airlines Inc., 159 D. L. R. (4th) 67, 74, 76 (1998) (stating that injury resulting from second-hand smoke constitutes an accident and expressly noting but declining to resolve the preemption issue decided today by this Court); Emery Air Freight Corp. v. Nerine Nurseries Ltd., [1997] 3 N. Z. L. R. 723, 727, 728 (involving damage to cargo, therefore covered under Article 18, and thus explicitly preempted under Article 24(1)); Seagate Technology Int’l v. Changi Int’l Airport Servs. Pte Ltd., [1997] 3 S. L. R. 1, 2 (same). While the Court is correct in its assertion that the British House of Lords assumed the terrorist attack in Sidhu v. British Airways plc, [1997] 1 All E.R. 193, was not an accident, see ante, at 17, I am puzzled why the Lords came to this conclusion. Courts both in this country and in our sister signatories have frequently found a hijacking to be an accident within the meaning of Article 17. See Saks, 470 U. S., at 405; Ayache v. Air-France, 38 Rev. franç. dr. aérien 450, 451 [1984] (T.G.I. Paris, 1st ch.,) (France); Air-France v. Consorts Telchner, 39 Rev. franç. dr. aérien 232, 240 [1984] (S. Ct. Israel).

6 The Convention does require such a result, for example, in the case of accidents resulting in no physical injury. I agree with the Court that, in that case, the victim’s remedies under local law are preempted by Article 24. See Eastern Airlines, Inc. v. Floyd, 499 U. S. 530, 552 (1991) . My interpretation does not, therefore, produce the anomaly identified ante, at 13. Since I believe that all personal injuries (whether physical or psychological) arising from accidents are covered by Article 17 and therefore preempted by Article 24(2), the “merely traumatized” plaintiff would not be free to sue outside the Convention.


TOP

Dissent

EL AL ISRAEL AIRLINES, LTD., PETITIONER v.
TSUI YUAN TSENG

on writ of certiorari to the united states court of appeals for the second circuit


[January 12, 1999]

Justice Stevens , dissenting.

My disagreement with the Court’s holding today has limited practical significance, not just because the issue has been conclusively determined for future cases by the recent amendment to the Warsaw Convention, see ante, at 2, 16–17, but also because it affects only a narrow category of past cases. The decision is nevertheless significant because, in the end, it rests on the novel premise that preemption analysis should be applied differently to treaties than to other kinds of federal law, see ante , at 17. Because I disagree with that premise, I shall briefly explain why I believe the Court has erred.

I agree with the Court that the drafters of the Convention intended that the treaty largely supplant local law. Article 24 preempts local law in three major categories: (1) personal injury claims arising out of an accident; 1 (2) claims for lost or damaged baggage; and (3) damage occasioned by transportation delays. 2 Those categories surely comprise the bulk of potential disputes between international air carriers and their passengers.

The Convention, however, does not preempt local law in cases arising out of “wilful misconduct.” Article 25 expressly provides that a carrier shall not be entitled to avail itself of the provisions of the Convention that “exclude or limit” its liability if its misconduct is willful. 3 Moreover, the question whether the carrier’s wrongful act “is considered to be equivalent to wilful misconduct” is determined by “the law of the court to which the case is submitted.” Ibid. Accordingly, the vast majority of the potential claims by passengers against international air carriers are either preempted by Article 24 or unequivocally governed by local law under Article 25.

Putting these cases aside, we are left with a narrow sliver of incidents involving personal injury that arise neither from an accident nor willful misconduct. 4 Although the drafters of the Treaty may not have realized that any such cases might arise, our construction of the term “accident” in Air France v. Saks, 470 U. S. 392, 405 (1985) , had the effect of either recognizing or creating this narrow band of cases. Frankly, I am not persuaded that this case belongs in this interstitial niche because I believe it should have been resolved by determining that petitioner’s alleged misconduct was either an accident within the meaning of Article 17, or involved willfulness as a matter of local law. Be that is it may, the parties have insisted that we decide the case on the assumption that it belongs in the sliver about which the treaty is silent.

This case and Saks therefore differ from each of the cases that the Court has cited in footnote 16 of its opinion to emphasize the importance of respecting “the treaty’s preemptive effect,” as none of those cases involved personal injury resulting from a nonaccident. Ante , at 18. 5 Given the unique character of this and the few other cases in the sliver, it is clear to me that the central purposes of the Convention will not be affected, whether we treat them like accident cases, which preempt local law, or like willful cases, which do not.

The overriding interest in achieving “ ‘uniformity of rules governing claims arising from international air transportation,’ ” ante , at 11, will be accommodated in the situations explicitly covered by Article 24, regardless of how the Court decides this case. In those circumstances, the Convention’s basic tradeoff between the carriers’ interest in avoiding unlimited liability and the passengers’ interest in obtaining compensation without proving fault will be fully achieved.

On the other hand, the interest in uniformity is disregarded in the category of cases that involve willful misconduct. Under the treaty, a reckless act or omission may constitute willful misconduct. See Koirala v. Thai Airways Int’l, Ltd , 126 F. 3d 1205, 1209–1210 (CA9 1997); Goldhirsch, supra n.1 at 121 (stating that most civil law jurisdictions have found that gross negligence satisfies Article 25). This broad definition increases the number of cases not preempted by the Convention. In these circumstances, the delegates at Warsaw did decide “to subject air carriers to the distinct, nonuniform liability rules of the individual signatory nations.” Ante, at 11.

Thus, the interest in uniformity would not be significantly impaired if the number of cases not preempted, like those involving willful misconduct, was slightly enlarged to encompass those relatively rare cases in which the injury resulted from neither an accident nor a willful wrong. That the interest in uniformity is accommodated in one category of cases but not the other simply raises, without resolving, the question whether the drafters of the treaty intended to treat personal injury nonaccident cases as though they involved accidents. A plaintiff in such a case, unlike those injured by an accident, receives no benefit from the treaty, and normally should not have a claim that is valid under local law preempted, unless the treaty expressly requires that result. 6

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, see ante, at 15, 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. See Medtronic, Inc. v. Lohr, 518 U. S. 470, 485 (1996) ; Department of Revenue of Ore. v. ACF Industries, Inc., 510 U. S. 332, 351 (1994) ; CSX Transp., Inc. v. Easterwood, 507 U. S. 658, 664 (1993) ; Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947) . For this reason, I respectfully dissent.


Notes

1 As we have already held, Article 17 only covers accidents, which we defined as “an unexpected or unusual event or happening that is external to the passenger.” Air France v. Saks, 470 U. S. 392, 405 (1985) . Thus, I believe Article 24(2)’s reference to Article 17 does not include nonaccidents. As a leading treatise states with regard to Article 17: “If the passenger’s lawyer does not want the Convention’s limits to be applicable, he must either: a) prove the Convention does not apply because his client was not a passenger in international transportation as defined in Article 1; or b) if the Convention is applicable, that the limits are unavailable because the carrier failed to deliver a ticket as provided by Article 3; or c) the carrier was guilty of wilful misconduct (Article 25) or d) there was no ‘accident’.)” L. Goldhirsch, The Warsaw Convention Annotated: A Legal Handbook 55 (1988) (emphasis added).

2 Article 24 provides: “(1) In the cases covered by articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this convention. “(2) In the cases covered by article 17 the provisions of the preceeding paragraph shall also apply, without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights.”

3 Article 25 provides: “(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 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.”

4 Article 18 (damage to goods) and Article 19 (damage occasioned by delay) are not limited to accidents; any liability under local law for damages to goods or for delay is therefore explicitly preempted by Article 24(1). See Saks, 470 U. S., at 398.

5 See Gal v. Northern Mountain Helicopters Inc., Dkt. No. 3491834918, 1998 B. C. T. C. Lexis 1351, *2–*3 (July 22, 1998) (involving a helicopter crash and noting “the plaintiff invoked the Warsaw Convention claiming for injuries and loss arising from the accident”); Naval-Torres v. Northwest Airlines Inc., 159 D. L. R. (4th) 67, 74, 76 (1998) (stating that injury resulting from second-hand smoke constitutes an accident and expressly noting but declining to resolve the preemption issue decided today by this Court); Emery Air Freight Corp. v. Nerine Nurseries Ltd., [1997] 3 N. Z. L. R. 723, 727, 728 (involving damage to cargo, therefore covered under Article 18, and thus explicitly preempted under Article 24(1)); Seagate Technology Int’l v. Changi Int’l Airport Servs. Pte Ltd., [1997] 3 S. L. R. 1, 2 (same). While the Court is correct in its assertion that the British House of Lords assumed the terrorist attack in Sidhu v. British Airways plc, [1997] 1 All E.R. 193, was not an accident, see ante, at 17, I am puzzled why the Lords came to this conclusion. Courts both in this country and in our sister signatories have frequently found a hijacking to be an accident within the meaning of Article 17. See Saks, 470 U. S., at 405; Ayache v. Air-France, 38 Rev. franç. dr. aérien 450, 451 [1984] (T.G.I. Paris, 1st ch.,) (France); Air-France v. Consorts Telchner, 39 Rev. franç. dr. aérien 232, 240 [1984] (S. Ct. Israel).

6 The Convention does require such a result, for example, in the case of accidents resulting in no physical injury. I agree with the Court that, in that case, the victim’s remedies under local law are preempted by Article 24. See Eastern Airlines, Inc. v. Floyd, 499 U. S. 530, 552 (1991) . My interpretation does not, therefore, produce the anomaly identified ante, at 13. Since I believe that all personal injuries (whether physical or psychological) arising from accidents are covered by Article 17 and therefore preempted by Article 24(2), the “merely traumatized” plaintiff would not be free to sue outside the Convention.


TOP

Dissent

EL AL ISRAEL AIRLINES, LTD., PETITIONER v.
TSUI YUAN TSENG

on writ of certiorari to the united states court of appeals for the second circuit


[January 12, 1999]

Justice Stevens , dissenting.

My disagreement with the Court’s holding today has limited practical significance, not just because the issue has been conclusively determined for future cases by the recent amendment to the Warsaw Convention, see ante, at 2, 16–17, but also because it affects only a narrow category of past cases. The decision is nevertheless significant because, in the end, it rests on the novel premise that preemption analysis should be applied differently to treaties than to other kinds of federal law, see ante , at 17. Because I disagree with that premise, I shall briefly explain why I believe the Court has erred.

I agree with the Court that the drafters of the Convention intended that the treaty largely supplant local law. Article 24 preempts local law in three major categories: (1) personal injury claims arising out of an accident; 1 (2) claims for lost or damaged baggage; and (3) damage occasioned by transportation delays. 2 Those categories surely comprise the bulk of potential disputes between international air carriers and their passengers.

The Convention, however, does not preempt local law in cases arising out of “wilful misconduct.” Article 25 expressly provides that a carrier shall not be entitled to avail itself of the provisions of the Convention that “exclude or limit” its liability if its misconduct is willful. 3 Moreover, the question whether the carrier’s wrongful act “is considered to be equivalent to wilful misconduct” is determined by “the law of the court to which the case is submitted.” Ibid. Accordingly, the vast majority of the potential claims by passengers against international air carriers are either preempted by Article 24 or unequivocally governed by local law under Article 25.

Putting these cases aside, we are left with a narrow sliver of incidents involving personal injury that arise neither from an accident nor willful misconduct. 4 Although the drafters of the Treaty may not have realized that any such cases might arise, our construction of the term “accident” in Air France v. Saks, 470 U. S. 392, 405 (1985) , had the effect of either recognizing or creating this narrow band of cases. Frankly, I am not persuaded that this case belongs in this interstitial niche because I believe it should have been resolved by determining that petitioner’s alleged misconduct was either an accident within the meaning of Article 17, or involved willfulness as a matter of local law. Be that is it may, the parties have insisted that we decide the case on the assumption that it belongs in the sliver about which the treaty is silent.

This case and Saks therefore differ from each of the cases that the Court has cited in footnote 16 of its opinion to emphasize the importance of respecting “the treaty’s preemptive effect,” as none of those cases involved personal injury resulting from a nonaccident. Ante , at 18. 5 Given the unique character of this and the few other cases in the sliver, it is clear to me that the central purposes of the Convention will not be affected, whether we treat them like accident cases, which preempt local law, or like willful cases, which do not.

The overriding interest in achieving “ ‘uniformity of rules governing claims arising from international air transportation,’ ” ante , at 11, will be accommodated in the situations explicitly covered by Article 24, regardless of how the Court decides this case. In those circumstances, the Convention’s basic tradeoff between the carriers’ interest in avoiding unlimited liability and the passengers’ interest in obtaining compensation without proving fault will be fully achieved.

On the other hand, the interest in uniformity is disregarded in the category of cases that involve willful misconduct. Under the treaty, a reckless act or omission may constitute willful misconduct. See Koirala v. Thai Airways Int’l, Ltd , 126 F. 3d 1205, 1209–1210 (CA9 1997); Goldhirsch, supra n.1 at 121 (stating that most civil law jurisdictions have found that gross negligence satisfies Article 25). This broad definition increases the number of cases not preempted by the Convention. In these circumstances, the delegates at Warsaw did decide “to subject air carriers to the distinct, nonuniform liability rules of the individual signatory nations.” Ante, at 11.

Thus, the interest in uniformity would not be significantly impaired if the number of cases not preempted, like those involving willful misconduct, was slightly enlarged to encompass those relatively rare cases in which the injury resulted from neither an accident nor a willful wrong. That the interest in uniformity is accommodated in one category of cases but not the other simply raises, without resolving, the question whether the drafters of the treaty intended to treat personal injury nonaccident cases as though they involved accidents. A plaintiff in such a case, unlike those injured by an accident, receives no benefit from the treaty, and normally should not have a claim that is valid under local law preempted, unless the treaty expressly requires that result. 6

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, see ante, at 15, 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. See Medtronic, Inc. v. Lohr, 518 U. S. 470, 485 (1996) ; Department of Revenue of Ore. v. ACF Industries, Inc., 510 U. S. 332, 351 (1994) ; CSX Transp., Inc. v. Easterwood, 507 U. S. 658, 664 (1993) ; Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947) . For this reason, I respectfully dissent.


Notes

1 As we have already held, Article 17 only covers accidents, which we defined as “an unexpected or unusual event or happening that is external to the passenger.” Air France v. Saks, 470 U. S. 392, 405 (1985) . Thus, I believe Article 24(2)’s reference to Article 17 does not include nonaccidents. As a leading treatise states with regard to Article 17: “If the passenger’s lawyer does not want the Convention’s limits to be applicable, he must either: a) prove the Convention does not apply because his client was not a passenger in international transportation as defined in Article 1; or b) if the Convention is applicable, that the limits are unavailable because the carrier failed to deliver a ticket as provided by Article 3; or c) the carrier was guilty of wilful misconduct (Article 25) or d) there was no ‘accident’.)” L. Goldhirsch, The Warsaw Convention Annotated: A Legal Handbook 55 (1988) (emphasis added).

2 Article 24 provides: “(1) In the cases covered by articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this convention. “(2) In the cases covered by article 17 the provisions of the preceeding paragraph shall also apply, without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights.”

3 Article 25 provides: “(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 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.”

4 Article 18 (damage to goods) and Article 19 (damage occasioned by delay) are not limited to accidents; any liability under local law for damages to goods or for delay is therefore explicitly preempted by Article 24(1). See Saks, 470 U. S., at 398.

5 See Gal v. Northern Mountain Helicopters Inc., Dkt. No. 3491834918, 1998 B. C. T. C. Lexis 1351, *2–*3 (July 22, 1998) (involving a helicopter crash and noting “the plaintiff invoked the Warsaw Convention claiming for injuries and loss arising from the accident”); Naval-Torres v. Northwest Airlines Inc., 159 D. L. R. (4th) 67, 74, 76 (1998) (stating that injury resulting from second-hand smoke constitutes an accident and expressly noting but declining to resolve the preemption issue decided today by this Court); Emery Air Freight Corp. v. Nerine Nurseries Ltd., [1997] 3 N. Z. L. R. 723, 727, 728 (involving damage to cargo, therefore covered under Article 18, and thus explicitly preempted under Article 24(1)); Seagate Technology Int’l v. Changi Int’l Airport Servs. Pte Ltd., [1997] 3 S. L. R. 1, 2 (same). While the Court is correct in its assertion that the British House of Lords assumed the terrorist attack in Sidhu v. British Airways plc, [1997] 1 All E.R. 193, was not an accident, see ante, at 17, I am puzzled why the Lords came to this conclusion. Courts both in this country and in our sister signatories have frequently found a hijacking to be an accident within the meaning of Article 17. See Saks, 470 U. S., at 405; Ayache v. Air-France, 38 Rev. franç. dr. aérien 450, 451 [1984] (T.G.I. Paris, 1st ch.,) (France); Air-France v. Consorts Telchner, 39 Rev. franç. dr. aérien 232, 240 [1984] (S. Ct. Israel).

6 The Convention does require such a result, for example, in the case of accidents resulting in no physical injury. I agree with the Court that, in that case, the victim’s remedies under local law are preempted by Article 24. See Eastern Airlines, Inc. v. Floyd, 499 U. S. 530, 552 (1991) . My interpretation does not, therefore, produce the anomaly identified ante, at 13. Since I believe that all personal injuries (whether physical or psychological) arising from accidents are covered by Article 17 and therefore preempted by Article 24(2), the “merely traumatized” plaintiff would not be free to sue outside the Convention.