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IN RE INFLIGHT EXPL. ON TRANS WORLD

November 21, 1991

IN RE INFLIGHT EXPLOSION ON TRANS WORLD AIRLINES, INC. AIRCRAFT APPROACHING ATHENS, GREECE ON APRIL 2, 1986. THIS DOCUMENT PERTAINS TO: OSPINA
v.
TWA 86 CIV. 8996 (JBW) AND YOUSSEF V. TWA 87 CIV. 0060 (JBW).



The opinion of the court was delivered by: Weinstein, District Judge:

TABLE OF CONTENTS

  I.    FACTS ........................................................ 626
  II.   LAW UNDER THE WARSAW CONVENTION .............................. 627
        A. FEDERAL CAUSE OF ACTION ................................... 628
        B. FEDERAL COMMON LAW ........................................ 629
  III.  WARSAW CONVENTION RECOVERY IN HISTORICAL CONTEXT ............. 629
        A. WRONGFUL DEATH ............................................ 629
        B. SURVIVAL .................................................. 630
  IV.   EVOLUTION OF CURRENT CONSENSUS ............................... 631
        A.  STATE LAW ................................................ 631
        B.  FEDERAL STATUTORY ANALOGUES .............................. 632
            1. FEDERAL EMPLOYERS' LIABILITY ACT ...................... 632
            2. FEDERAL TORT CLAIMS ACT ............................... 632
            3. LONGSHORE AND HARBOR WORKERS' COMPENSATION ACT ........ 633
            4. JONES ACT ............................................. 633
            5. CIVIL RIGHTS ACT ...................................... 634
            6. DEATH ON THE HIGH SEAS ACT AND GENERAL MARITIME LAW ... 635
  V.    POLICIES SERVED BY SURVIVAL RECOVERY FOR MENTAL AND
        PHYSICAL INJURY .............................................. 636
        A.  FULL COMPENSATION ........................................ 629
        B.  HARMONIZING EASTERN AIRLINES v. FLOYD .................... 637
            1. FLOYD DISTINGUISHED ON THE FACTS ...................... 638
            2. "TRIPWIRE" ARGUMENT ................................... 639
        C.  PURPOSES OF THE CONVENTION ............................... 639
  VI.   CONCLUSION ................................................... 641

I. FACTS

As TWA Flight 840 was approaching Athens airport en route from Rome on April 2, 1986, a bomb exploded under one of the seats. Four passengers were killed and others were injured. Mohsen Youssef, seated some distance from the explosion, suffered physical and psychic injury. Alberto Ospina, seated over the bomb, was blown out of the plane; his broken body was later found with serious wounds in the lower torso. Despite a large hole in the fuselage, the plane landed safely.

A young female terrorist had boarded in Cairo and placed the bomb under her seat. She was allowed aboard in flagrant violation of many basic security measures. Compounding TWA's gross errors was a failure to search the cabin properly in Rome, the first stop after Cairo. The terrorist set the bomb trigger and left the plane in Rome, proceeding to a self-contratulatory T.V. appearance in Lebanon.

To detail TWA's neglect would reveal security measures and information best left unpublished. (When the security evidence was taken the courtroom was cleared.) It is enough to say that the jury verdicts, finding TWA's delicts the equivalent of willful misconduct, were more than justified. The award to Youssef is not seriously challenged. It was fully supported by the record.

The only open issue is the propriety of $2,754,951.60 in damages awarded to Mr. Ospina's widow. TWA particularly attacks an included award of $85,000 for Mr. Ospina's pain and suffering as he was being blown out of the plane and was falling to the ground.

Mr. Ospina was thirty-nine years old, a successful Colombian-American who was travelling on business when the accident occurred. He flew all over the world, training physicians and technicians to use the medical devices his company produced. He was being groomed for the position of vice-president in charge of international marketing. The amount of loss attributable to death was fully supported by the evidence.

Describing the injuries, the Athens Medical Examiner at the post-mortem examination determined that the body had been nearly severed by the blast. There were bruises and abrasions on the skin and multiple fractures of the skull, sternum, ribs, and lower extremities. First and second degree burns covered more than 20% of Mr. Ospina's body. The lower body was largely eviscerated. After noting other injuries, the examiner concluded that "the dismemberment of the body was made while alive, while the dull injuries were made postmortally."

TWA made strenuous efforts to challenge the conclusions of plaintiff's expert, the well-qualified coroner of Westchester County. The expert insisted that Mr. Ospina probably lived five to ten seconds after the blast and that he was aware of what was happening to him. TWA produced no expert on this issue. Assuming, as we must, that Mr. Ospina knew what was happening as he was plunging to his death, an award of $85,000 is not excessive. There was enough evidence to support the jury's verdict that Mr. Ospina suffered pain and extreme psychic damage after he was injured by the bomb, but before he died.

TWA claims that damages for pain and suffering are improper under the Warsaw Convention. For a variety of reasons described below, such damages are awardable under the Warsaw Convention.

II. LAW UNDER THE WARSAW CONVENTION

The Warsaw Convention was ratified by the United States Senate in 1934. It governs air carrier liability for harm to passengers on international flights. The carrier is liable for "damages sustained in the event of the death or wounding of a passenger." Article 17 of the Warsaw Convention states:

  The carrier shall be liable for damage sustained
  in the event of the death or wounding of a
  passenger or any other bodily injury suffered by a
  passenger, if the accident which caused the damage
  so sustained took place on board the aircraft or
  in the course of any of the operations of
  embarking or disembarking.

Convention for Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876, entered into force Oct. 29, 1934, reprinted at 49 U.S.C. App. § 1502 note (1976). The original French text reads:

  Le transporteur est responsable du dommage survenu
  en cas de mort, de blessure, ou de toute autre
  lésion corporelle subie par un voyageur lorsque
  l'accident qui a causé le dommage s'est produit
  à bord de l'aéronef ou au cours de toutes
  opérations d'embarquement et de débarquement.

49 Stat. 3005.

The Montreal Agreement of 1966 modified the Convention for flights with connecting points in the United States, raising the limit of liability to $75,000 and eliminating due care defenses. See Agreement Relating to Liability Limitation of the Warsaw Convention and the Hague Protocol, approved by C.A.B. Order No. E-23680, reprinted at 49 U.S.C. App. § 1502 note (1976). So modified, the Warsaw Convention now subjects international carriers to strict liability for Article 17 injuries sustained on flights connected with the United States.

Under Article 25 of the Convention, the $75,000 limit is inapplicable where the damage arises from an air carrier's "wilful misconduct." That provision reads:

49 U.S.C. App. § 1502 note (1976). Article 25 applies in this case.

A. FEDERAL CAUSE OF ACTION

For much of its history, the Warsaw Convention was interpreted as not creating an independent cause of action. Rather, courts held that the Convention simply created legal principles to determine recovery for infringements of independently created rights. Only in 1978 did the Court of Appeals for the Second Circuit rule that the Convention creates its own wrongful death cause of action founded in federal treaty law. 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). Other circuits soon followed. See, e.g., In re Mexico City Aircrash of October 31, 1979, 708 F.2d 400, 412 (9th Cir. 1983) ("[T]he Convention creates an independent cause of action for wrongful death, a cause of action founded in federal treaty law."); Boehringer Mannheim-Diagnostics, Inc. v. Pan Am. World Airways, 737 F.2d 456, 459 (5th Cir. 1984) (Warsaw Convention creates controlling cause of action and preempts state law), cert. denied, 469 U.S. 1186, 105 S.Ct. 951, 83 L.Ed.2d 959 (1985).

One troubling issue for courts in circuits which recognize a cause of action under the Convention is the status of state law claims. Should plaintiffs be permitted to sue under both the Convention and state statutes? The Second Circuit recently answered in the negative, holding that a Warsaw Convention wrongful death action preempts all state law causes of action:

  We therefore decline to read into the Convention
  any attempt to preserve a right to a state law
  cause of action in addition to the action provided
  under the Convention itself.

In re Air Disaster at Lockerbie, Scotland on December 21, 1988, 928 F.2d 1267, 1274 (2d Cir. 1991). Explaining its reasoning, based largely on the need for uniformity, the court continued:

  The way the other parties [to the Convention] have
  viewed the Convention, its emphasis on uniformity,
  and the need for a single, unified rule on such
  points as the recoverability of punitive damages
  lead to the belief that the Convention should be
  interpreted as making all actions — other than
  those not based on the Convention — exclusive
  under it.

Id.

Though resolved in the Second Circuit, the question whether the Convention preempts state law causes of action is an open question elsewhere. Chief Judge Mikva has criticized the In re Lockerbie decision, finding it "astonishing" in light of earlier precedents. See In re Korean Air Lines Disaster of September 1, 1983, 932 F.2d 1475, 1492 (D.C. Cir. 1991) (Mikva, C.J., dissenting in part); see also Calderon v. Aerovias Nacionales de Colombia, Avianca, Inc., 738 F. Supp. 485, 486 (S.D.Fla. 1990) ("[T]he Warsaw Convention, rather than supplying an exclusive cause of action, provides only an exclusive remedy for such actions, however founded.") (emphasis added); Morgan v. United Air Lines, 750 F. Supp. 1046, 1052 (D.Colo. 1990) (state law is not preempted under the Warsaw Convention).

The Supreme Court has twice declined to decide the issue of exclusivity under the Warsaw Convention. See Eastern Airlines v. Floyd, ___ U.S. ___, 111 S.Ct. 1489, 1502, 113 L.Ed.2d 569 (1991); Air France v. Saks, 470 U.S. 392, 408, 105 S.Ct. 1338, 1346, 84 L.Ed.2d 289 (1985) (expressing no view on whether plaintiff's state negligence action could go forward if Convention's liability rules did not apply). In the Second Circuit, at least, any remedy must be predicated, not on state law, but on federal common law.

Should the Supreme Court ultimately decide that state law causes of action continue to be enforceable (contrary to the Second Circuit view), the conclusion of this memorandum would be unchanged. Were state substantive law to govern, the law of New York under applicable federal and state conflict rules would apply, the parties have in effect conceded. New York substantive law allows recovery for pain and suffering prior to death.

B. FEDERAL COMMON LAW

Appellants in In re Lockerbie were appealing lower court orders which had denied punitive damages under the Warsaw Convention. One case concerned the hijacking of a Pan Am jet over Karachi, Pakistan, on September 6, 1986. The other case stemmed from the notorious bombing of Pan Am Flight 103 over Lockerbie, Scotland, on December 21, 1988.

Having decided that the Convention preempts state wrongful death causes of action, the Second Circuit next considered what law applies in suits filed under the Convention itself. Since the Warsaw Convention is a treaty, with the same stature and effect as a federal statute, the In re Lockerbie court held that federal law must be applied to construe the Convention. It wrote:

  We look to the source of the right in order to
  determine the controlling law. The source of the
  right to sue under the Convention is the
  Convention itself — a treaty that only the federal
  government has the power to make. . . .
    Consequently, the source of the right is federal
  law — in fact, uniquely federal law. It follows
  then the substantive law we must apply is also
  federal law.

In re Lockerbie, 928 F.2d at 1278 (citations omitted; emphasis in original). The court determined that the applicable substantive law is the law of tort, not contract.

Two other courts have applied federal common law to cases brought under the Warsaw Convention. In In re Korean Air Lines Disaster of September 1, 1983, 932 F.2d 1475 (D.C. Cir. 1991), the D.C. Circuit engaged in an analysis similar to that of the In re Lockerbie court, applying federal common law to determine whether plaintiffs were entitled to punitive damages in a cause of action under the Convention. See In re Korean Air Lines, 932 F.2d at 1484-90 (finding punitive damages not allowable under the Convention). Another earlier case, Harris v. Polskie Linie Lotnicze, 820 F.2d 1000, 1003-04 (9th Cir. 1987), applied federal common law to ascertain the proper choice of law under the Convention.

In determining the applicable federal common law on the issue of survival recovery for pain and suffering damages, it is desirable first to examine the development of the current United States judicial and legislative consensus.

III. WARSAW CONVENTION RECOVERY IN HISTORICAL CONTEXT

A. WRONGFUL DEATH

Wrongful death actions and survival actions are designed to compensate for different kinds of loss. A wrongful death award compensates the estate or the family members for the economic loss they suffer as a result of death, whereas a survival action continues the injured person's own claim for injuries which accrued before death. The common law did not recognize either of these claims, and several principles have been offered in explanation. See generally F. Harper, F. James & O. Gray, The Law of Torts § 24.1 et seq. (2d ed. 1986).

Under the felony merger doctrine, a tort against another human being was considered less serious than a crime against the Crown. The Crown was the first to exact punishment, which usually meant that the felon was executed and his property forfeited. Id. § 24.1, at 455 n. 1. Logically, wrongful death recovery was impossible: nothing of the defendant or his property remained, even if a victim's family had been able or had wanted to pursue a private cause of action. Moreover, at common law judges had an aversion to placing a value on something so sacred as human life. See Smedley, Wrongful Death — Bases of the Common Law Rules, 13 Vand.L.Rev. 605, 613 (1960).

The ascendancy of industry and the railways may explain why wrongful death actions resurfaced in mid-nineteenth-century America:

  Tragedy as a result of indifference and neglect
  was suddenly upon us in the factory, on the city
  streets, and on the rails. Nor was the principal
  villain of the piece any longer the impecunious
  felon. In his place stood the prospering
  corporation with abundant assets to meet the needs
  of widows and orphans.

Malone, supra, at 1043. The notion of locomotives injuring the nineteenth-century worker raises an eerie comparison to the huge jets ferrying twentieth-century ...


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