Today the Court granted certiorari in one case of interest to the business community. Amicus briefs in support of the petitioner are due on July 2, 1998, and amicus briefs in support of the respondent are due on August 3 (because August 1 is a Saturday). Any questions about this case should be directed to Evan Tager (202-778-0618) or Alan Untereiner (202-778-0656) in our Washington office.

Warsaw Convention — Exclusivity of Remedy. Article 17 of the Warsaw Convention renders carriers liable for personal injury that occurs during international air travel (including embarkation and/or disembarkation of international flights) only if the injury is a "bodily injury" that was caused by an "accident." 49 U.S.C. 40105 (note). Article 24 provides that cases "covered by" Article 17 "can only be brought subject to the conditions and limits" of the Convention, including the requirements contained in Article 17 itself and certain damage limitations. Ibid. After explicitly declining to address the issue in Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 553 (1991), and Air France v. Saks, 470 U.S. 392, 408 (1985), the Court granted certiorari in El Al Israel Airlines, Inc. v. Tseng, No. 97-475, to decide whether the Convention provides the exclusive remedy for passengers who suffer personal injury during the course of international air travel, thus precluding them from pursuing state-law tort claims that do not meet the requirements of Article 17.

Tseng was subjected to what she considered to be an overly intrusive search by El Al personnel prior to boarding a flight to Israel. She sued the airline alleging, among other things, assault and false imprisonment. The district court held that the Warsaw Convention governed Tseng's personal injury claims because the search she complained of constituted an 'accident' giving rise to liability under Article 17 and that Tseng was barred from recovery because the only injuries she alleged were psychological and emotional, not physical. The Second Circuit reversed. 122 F.3d 99 (1997). It first concluded that a personal search is "a distasteful but a routine procedure of international air travel" and thus cannot constitute an accident for Article 17 purposes. Id. at 103. Relying on the Convention's text, its drafting history, and the objectives it was intended to advance, the court went on to hold that "where the Convention is inapplicable" - for example, where no accident occurred and no bodily injury exists as in Tseng's case - "a plaintiff may seek recovery under state law." Id. at 107. This holding is in accord with the Third Circuit's decision in Abramson v. Japan Airlines, 739 F.2d 130 (1984), but conflicts with the decisions of the Fourth Circuit in Potter v. Delta Air Lines, 98 F.3d 881 (1996), and the British House of Lords in Abnett v. British Airways PLC, 1 All E.R. 193 (1996), which, as a construction of the Convention by a sister signatory, is "entitled to considerable weight" (Saks, 470 U.S. at 404).

The Court's decision in this case should be of importance to the airline industry.

Copyright 1998 Mayer, Brown & Platt. This Mayer, Brown & Platt publication provides information and comments on legal issues and developments of interest to our clients and friends. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

This Mayer, Brown, Rowe & Maw Supreme Court Docket Report provides information and comments on legal issues and developments of interest to our clients and friends. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.