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February 10, 1975


Tyler, District Judge.

The opinion of the court was delivered by: TYLER

TYLER, District Judge.

This suit is a diversity action for $75,000 for bodily injury and mental anguish allegedly caused by the hijacking of one of defendant's airplanes to a desert area near Amman, Jordan, on September 6, 1970. In an earlier opinion, this court denied a motion by defendant Swissair for summary judgment and dismissal of the complaint. That motion was made on the grounds (1) that, at least in the instant, factual context, the Warsaw Convention *fn1" and special contract provisions contained in tariffs filed by the airlines with the Civil Aeronautics Board *fn2" exclusively govern any legal claim asserted by a passenger in international transportation against the carrier; (2) that a hijacking is not an "accident" *fn3" within the meaning of the Warsaw Convention; and (3) that, since the Convention only provides that the carrier shall be liable when the injury is caused by an "accident", the carrier could not be liable in the instant, factual context. This court denied the motion because it decided that a hijacking is an "accident" within the meaning of the Convention. Husserl v. Swiss Air Transport Co., Ltd., 351 F. Supp. 702 (S.D.N.Y. 1972), aff'd, 485 F.2d 1240 (2d Cir. 1973). There being no reason to decide the issues raised by the first and third grounds, the court did not do so. The opinion, however, suggested that at least one other phrase from the relevant provisions of the Warsaw Convention might raise a controlling issue of interpretation.

 Resolution of that issue and of the other issues previously raised but not decided is the object of defendant Swissair's current motion for summary judgment and dismissal. The case is in essentially the same factual posture as it was when the earlier motion was decided.

 The facts of the hijacking itself are uncontested. On September 6, 1970, in Zurich, Switzerland, plaintiff Husserl boarded defendant's direct flight to New York. Unfortunately, shortly after takeoff, an Arabian terrorist group hijacked the airplane and directed the pilot to fly to a desert area near Amman, Jordan. The passengers were forced to stay on the plane for approximately 24 hours under circumstances less than ideal for physical or mental health. Plaintiff and other women and children were then moved to a hotel in Amman where they remained until September 11, 1970, at which time plaintiff and other passengers were flown to Nicosia, Cyprus. The following day they were flown back to Zurich; and, finally, on September 13, 1970, they were flown to New York, the original destination.

 Plaintiff alleges that, from the time the terrorists took control of the aircraft until she was liberated and returned to Zurich, she suffered "bodily injury and severe mental pain and anguish resulting from her expectation of severe injury and/or death, all of which will have permanent effects on the plaintiff." Complaint, P 10. Plaintiff contends defendant is liable for damages under the Warsaw system, contract law, and/or tort law.

 Neither the complaint nor plaintiff's deposition indicates that she was injured by the impact of any physical object on her body. But she does contend that the mental trauma of the hijacking experience, apparently including to some extent the detention in Amman and the trip back to Zurich, caused various mental and psychosomatic injuries, at least some of which involve demonstrable, physiological manifestations. For purposes of this motion, the court must accept these allegations and contentions in the light most favorable to plaintiff and, therefore, puts aside its substantial doubt that plaintiff will be able to prove both injury and causation. *fn4"

 The grounds of the instant motion are the same as those of the earlier motion except with respect to the particular phrase of the Warsaw Convention which is at issue. Swissair contends: (1) that the Warsaw system provides the exclusive relief available for an injury sustained in international transportation and that, if the Convention does not explicitly specify relief for a certain type of injury, then it precludes any relief for that type of injury; (2) that the phrase "death or wounding . . . or any other bodily injury", as used in Article 17 of the Convention (full text, Section I infra), does not include the type of mental injury allegedly suffered by plaintiff; and (3) that, therefore, plaintiff cannot recover in the instant, factual context. Plaintiff, of course, disagrees with each contention. For the reasons enumerated and explicated hereafter, this court concludes that Swissair is not entitled to judgment as a matter of law on the grounds it asserts and that there are material issues of fact which are not resolved on the present record.

 The legal premises for this ruling are (1) that the Warsaw system specifies the exclusive relief available for a certain type of injury sustained in international transportation if and only if the types of injuries described in Articles 17, 18 and 19 include the type of injury alleged and (2) that the phrase "death or wounding . . . or any other bodily injury", as used in Article 17, does comprehend mental and psychosomatic injuries. While it is true that only the latter of these premises needs be established to dispose of the motion, it would be imprudent not to establish the first as well; the issues involved have been briefed and argued thoroughly, will have to be decided sometimes, are integrally connected with the interpretation of the phrase at issue and with the other issues raised by defendant's motion, and are, therefore, most appropriately and efficiently resolved now. Unfortunately, even the establishment of these two premises is insufficient to support the conclusion that plaintiff has a claim for relief which could definitely withstand any motion to dismiss or for summary judgment. More will be heard of these disheartening problems in Section III, infra. Suffice it to say here that they are all related to the well-established and sometimes criticized principle of law that the Warsaw system does not create any claim for relief but, in the instant, factual circumstances, merely (1) creates a presumption of liability if the otherwise applicable substantive law provides a claim for relief based on the injury alleged, and (2) establishes a maximum limit on the potential liability to which a carrier might be subject for an injury caused by an accident in international transportation.

 1. Exclusive Relief

 Subsection (1) of Article 1 of the Convention provides, in relevant part: "This convention shall apply to all international transportation of persons . . . performed by aircraft for hire". Clearly Husserl was a person in "international transportation", as that phrase is defined in Article 1(2); and, since the Warsaw Convention is a treaty to which the United States has adhered, it is the supreme law of the land and is, by its terms, applicable to this case. The parties do not dispute this point. However, they do disagree on whether the Convention applies exclusively and precludes alternative causes of action not based on the treaty.

 Defendant contends that the treaty is the only law applicable: (1) because it is the supreme law of the land and overrides any contrary state constitution, law, or policy; (2) because Article 24 of the Convention provides that certain actions for damages ". . . can only be brought subject to the conditions and limits set out in this convention"; (3) because the legislative history demonstrates that its drafters intended the Convention to provide the exclusive remedy for any injury; (4) because case law precedent has established that the provisions of the Convention exclusively govern the rights and liabilities of the parties; and (5) because the expressed purpose of the treaty is to regulate "in a uniform manner the conditions of international transportation by air in respect of . . . the liability of the carrier." On the other hand, plaintiff argues that, since the Convention merely creates a presumption and a limitation of liability but not a right of action, she may assert causes of action based on negligence and breach of contract in the alternative to a cause of action which invokes the Convention's presumption of liability. *fn5" Apparently, plaintiff opposes the motion on the further alternative theory that her injury can be traced back to the negligence of the carrier which occurred before embarkation and which is, therefore, not covered by the Convention, or that Swissair breached its implicit contractual duty to transport Husserl safely to her destination, which duty was presumedly created before embarkation and which breach is, therefore, not covered by the Convention. Unfortunately, nowhere does plaintiff directly address or respond to the issue of exclusive remedy raised by defendant. In fact, to a large extent, this court is able to agree with most of the propositions advanced by each side; the difficulty is that these propositions are advanced by counsel so as to side-slip one another.

 Those sections of the treaty most relevant to the exclusive relief issue are the preamble, Article 1, and Chapter III. The preamble clearly articulates that the purpose of the Convention is to regulate "in a uniform manner the conditions of international transportation by air in respect of . . . the liability of the carrier." Article 1 provides that the Convention shall apply to all international transportation, and Chapter III governs the liability of the carrier.

 When the Convention was drafted in the late 1920's, the international air transportation industry was an infant; but various sovereignties saw great potential in it and wished to nurture its development. To effect this end, their plenipotentiaries met to agree on some uniform, international system which would provide a favorable environment for the industry's growth. The potentially destructive liability to which a carrier might be subject for an air disaster was perceived as an impediment to growth. See Lowenfels, The United States and the Warsaw Convention, 80 Harv. L. Rev. 497, 499-500 (1967) (hereinafter cited as "Lowenfels I") and authorities cited therein. Hence, the drafters of the treaty proposed to limit liability for injuries caused by air accidents. However, they did not wish to unfairly prejudice the claim of a traveler who was willing to accept the considerable risks of air transportation, so they proposed a presumption of liability on the part of the carrier to offset the limitation of liability. See Lowenfels I at 499-500 and authorities cited therein. See also Articles 17, 18, 19 and 23. These proposals became a part of the treaty to which the United States adhered in 1934.

 Since that time the international air transportation industry has grown and has become quite safe. As a result of this growth and other developments, various modifications of the treaty have been suggested. See Lowenfels I. By 1965, the United States was ready to denounce the treaty because the limitation of liability was too low. See Lowenfels I at 546-52. Before the denunciation became effective, *fn6" however, the carriers agreed to a provisional arrangement, see note 2 supra, whereby they waived the defenses provided by Article 20(1) *fn7" of the Convention and accepted an increase in the limitation of liability to $75,000.

 Although the original motivation for establishing the international agreement no longer exists, it is clear beyond peradventure that the High Contracting Parties (the Convention's designation for signatories) still adhere to the treaty's express purpose; uniformity with respect to the liability of the carrier is still desired, if for reasons somewhat different from the motivating ones. See Lowenfels I. There can be no question that his uniformity was and is intended to result from a limitation on and a presumption of liability. It seems implicit in these indisputable propositions that the purpose of the Warsaw system and the intent of its drafters, see, e.g., comments of Sir Alfred Dennis of Great Britain, Warsaw Minutes of 140, must also have been to establish the exclusive relief available for damages resulting from an injury sustained in international transportation. Manifestly, if an injury subject to ...

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