United States District Court, Southern District of New York
January 18, 1990
IN RE HIJACKING OF PAN AMERICAN WORLD AIRWAYS, INC. AIRCRAFT AT KARACHI INTERNATIONAL AIRPORT, PAKISTAN ON SEPTEMBER 5, 1986.
The opinion of the court was delivered by: Sprizzo, District Judge:
MEMORANDUM OPINION AND ORDER
Defendant, Pan American World Airways, Inc. ("Pan Am"), has
moved pursuant to Federal Rule of Civil Procedure 56 for
partial summary judgment dismissing all claims seeking the
imposition of punitive damages.*fn1 Pan Am claims that
because Article 17 of the Warsaw Convention as supplemented by
the Montreal Agreement*fn2 (collectively referred to as the
"Convention") creates a cause of action for compensatory
damages limited to $75,000,*fn3 any recovery of punitive
damages is preempted by the Convention.*fn4 For the reasons
set forth herein, the motion is denied.
Notwithstanding some early precedent
to the contrary,*fn5 it is now well-settled in this Circuit
that the Convention creates a right of recovery for wrongful
death and personal injury independent of the various actions
created by the internal law of the signatory nations. See
Benjamins v. British European Airways, 572 F.2d 913, 919 (2d
Cir. 1978), cert. denied, 439 U.S. 1114, 99 S.Ct. 1016, 59
L.Ed.2d 72 (1979). However, that remedy, whether it be
contractual or tortious in nature, does not supersede other
state common law remedies not preempted by the Convention. See
Tokio Marine & Fire Ins. Co. v. McDonnell Douglas Corp.,
617 F.2d 936, 942 (2d Cir. 1980).*fn6
Punitive damages are a part of common law tort remedies,
see Racich v. Celotex Corp., 887 F.2d 393, 396 (2d Cir. 1989),
and no language in the Convention expressly preempts or
precludes such claims, although consistent with Article 22, all
damages, including punitive damages, cannot exceed $75,000. Nor
may such preemption be implied in the absence of some clear
indication in the text itself or its legislative history that
supports that conclusion. See Chan v. Korean Airlines, Ltd.,
___ U.S. ___, 109 S.Ct. 1676, 1683-84, 104 L.Ed.2d 113 (1989).
Here, not only is there no such clear indication, but the
language of the Convention leads to the opposite conclusion.
Article 24(1) provides that "any action for damages, however
founded, can only be brought subject to the conditions and
limits set out in this convention." This language strongly
suggests that the Convention contemplates state causes of
action, including those for punitive damages, not founded in
or created by the Convention. See Tokio Marine, supra, 617 F.2d
at 942; Reed v. Wiser, 555 F.2d 1079, 1084-85 (2d Cir.), cert.
denied, 434 U.S. 922, 98 S.Ct. 399, 54 L.Ed.2d 279 (1977).
Indeed, Article 24(2) expressly states that the Convention
applies "without prejudice to the questions as to who are the
persons who have the right to bring suit and what are their
respective rights." (emphasis added).
This is especially true since the Convention leaves many
issues to be governed by the internal law of the parties to
the Convention. One such issue is the question of what items
of damages are recoverable. See Harris v. Polskie Linie
Lotnicze, 820 F.2d 1000, 1002 (9th Cir. 1987); Cohen v. Varig
Airlines, 62 A.D.2d 324, 334, 405 N.Y.S.2d 44, 49 (1st Dep't
1978). Furthermore, both the rules governing comparative
negligence, see Article 21, and "[q]uestions of procedure" are
controlled by local law. See Article 28(2).
Also lending support to this position is Racich v. Celotex
Corporation, supra, 887 F.2d at 396, where the Second Circuit
rejected an argument that a claim for punitive damages was not
available unless specifically referred to in a state statute
reviving asbestos related tort claims which would otherwise
have been time-barred. The court stated that "[s]ince a common
law tort action for personal injury by definition includes the
element of damages, including punitive damages when factually
appropriate, the omission in the revival statute and the
legislative silence with respect to punitive damages do not
preclude such a recovery." Id. (citations omitted).
Even assuming that Article 17 did preclude the recovery of
punitive damages, the Court finds that in any event the
Convention would bar Pan Am's reliance on Article 17 in cases
of wilful misconduct. Article 25(1) provides that:
[t]he 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
Therefore, to the extent that Article 17 is construed to
preempt a claim for punitive damages, it would be a limitation
or exclusion of liability within the meaning of Article 25,
and such claims would not be barred in cases involving wilful
Pan Am, however, argues that the only provision excluding or
limiting liability within the meaning of Article 25 is Article
22's monetary limit, and, therefore, the relevant portions of
Article 17 remain intact. However, Pan Am's interpretation, if
accepted, would require the Court to construe Article 25 as if
it read "the provision, to wit Article 22, . . . which limits
the amount of his liability" which would constitute a judicial
alteration of the plain language of the Convention foreclosed
by Chan, supra. For this reason the Court cannot accept as
persuasive the reasoning set forth by the Eleventh Circuit in
Floyd v. Eastern Airlines, Inc., 872 F.2d 1462, 1483-89 (11th
Cir. 1989), which was followed in In re Air Disaster in
Lockerbie, Scotland, M.D.L. 799, 1990 WL 1672, 1990 WL 1673
(E.D.N.Y. January 3, 1990). Both of these cases rely heavily
upon a judicially perceived need to construe the Convention in
accordance with the intention of the Contracting Parties.
However, this Court does not believe that Chan permits the
Court to amend the plain language of the Convention to
effectuate what it believes the Contracting Parties intended.
In this regard, it is significant to note that an amendment
to Article 25 which has never been ratified by the Senate
provides that: "[t]he limits of liability specified in Article
22 shall not apply if it is proved that the damage resulted
from an act or omission of the carrier . . . done with intent
to cause damage or recklessly and with knowledge that damage
would probably result." Hague Protocol Art. XIII,
reprinted in Lowenfeld, Aviation Law Documents Supp. at 429.
The fact that the Contracting Parties saw the need to amend
Article 25 to achieve precisely the same result that Pan Am
would have this Court achieve by judicial interpretation
affords additional support for the conclusion that the policy
considerations underlying Chan preclude a judicial amendment of
Article 25. This is especially true since the United States has
refused to adopt that amendment. Cf. Trans World Airlines, Inc.
v. Franklin Mint Corp., 466 U.S. 243, 260-61, 104 S.Ct. 1776,
1786-87, 80 L.Ed.2d 273 (1983) (courts should not imply repeal
of Convention provisions).
Accordingly, Pan Am's motion for partial summary judgment is
It is SO ORDERED.