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
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