may only be resolved by resorting to the intent of the parties
as evidenced by materials outside the Convention's text.
Similarly, this Court ultimately found that no provision of
the treaty clearly created a cause of action for punitive
damage claims and hence, turned to the shared expectations of
the parties for guidance. However, prior to finding the treaty
to be ambiguous in this respect, we examined the language of
In this Court's prior Memorandum and Order, this Court
analyzed the "natural meaning" of those passages that
plaintiffs asserted authorized punitive damage claims whether
or not wilful misconduct existed. While plaintiffs argued that
this Court should read the "however founded" language of
Article 24, ¶ 1 in combination with the "without prejudice to
the questions as to who are the persons who have the right to
bring suit and what are their respective rights" of Article 24,
¶ 2 without reference to the other language in those
paragraphs, this Court found that the natural meaning of that
language could only be determined by examining it in the
context of the entire paragraphs and that as a result the
natural meaning of the paragraphs indicated punitive damages
were certainly not authorized in cases where no wilful
misconduct existed as plaintiffs have asserted. Memorandum and
Similarly, this Court examined the natural meaning of the
language found in Article 25: "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 wilful misconduct" and found it to be ambiguous. "Taken
alone, the language of Article 25 may be interpreted to mean
that one engaged in wilful misconduct would not benefit from
either the specific monetary limit set by the Warsaw
Convention or the general plan to limit liability to
compensatory languages." Memorandum and Order, 10. Further,
this Court indicated that even without any reference to the
intent of the parties, the natural meaning of the language was
more consistent with the former of the two possibilities;
otherwise "Article 25 would have provided that the entire
Warsaw Convention, rather than just certain provisions, was
inapplicable in cases [of wilful misconduct]." Memorandum and
Order, p. 10.
Having determined that neither Article 24 nor 25 provided a
cause of action for punitive damages, this Court then
determined that the natural meaning of Article 17 also did not
allow for punitive damage claims since punitive damage claims
were not "damage sustained" and moreover, if Article 17 was
meant to provide a cause of action for punitive damage claims
the same would have been worded as actions for damages rather
than damage sustained.*fn3
In conclusion, it seems to this Court that we have not
failed to consider the Chan holding but rather simply disagree
with its applicability to the case at bar since we found that
the treaty does not clearly provide any cause of action for
punitive damage actions. Therefore, plaintiff's first ground
for reargument fails.
As for plaintiffs argument that this Court has misconstrued
the primary intent of the parties, it is possible that
plaintiffs construction of the parties intent is correct and
we are wrong but we do not think so. This also appears to be
an issue for appeal rather than reargument.
With respect to plaintiffs' argument that we improperly
relied on Floyd which did not apply Chan, we feel as discussed
above that we did apply Chan and that while we relied on
aspects of the Floyd decision for guidance on the parties'
intent, this seems quite appropriate since Floyd is the only
Circuit decision which has addressed issues involving punitive
damages and the Warsaw Convention.
Finally, in light of the intensity of some of the comments
on our original Memorandum and Order, we feel constrained to
make the following comment on our Memorandum and Order dated
January 3, 1990.
As we indicated in our footnote 14, it may well be that this
dollar limitation of $75,000.00 has been rendered
anachronistic by inflation and might well be more realistic if
revised to an amount between $250,000.00 to $300,000.00 but
that like the whole question of punitive damages is more
appropriately the subject of an amendment to the treaties not
pleas to our courts or those of other countries as plaintiffs'
attorneys seek to do here. Common sense tells us that this
must be so in cases of international agreements such as those
with which we are concerned in this case.
In conclusion, while we deny plaintiffs' motion for
reargument, we grant their motion for an order certifying an
interlocutory appeal of this Court's Memorandum and Order,
dated January 3, 1990.