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information best left unpublished.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
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
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:
, 1274 (2d Cir. 1991). Explaining its reasoning,
based largely on the need for uniformity, the court continued:
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
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.
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
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
The first British wrongful death statute was enacted in 1846.
See Fatal Accidents Act (Lord Campbell's Act), 9 & 10 Vict.,
ch. 93 (1846). Many American states soon followed, and every
state has now modified the common law rule by statute to
provide for some kind of wrongful death recovery. F. Harper, F.
James & O. Gray, supra, § 24.1.
Survival actions are distinct from wrongful death claims, and
are designed to continue whatever action the decedent would
have had, but for his death. A survival action ensures that a
tortfeasor will not do better by killing rather than by simply
injuring. Without a survival action, a defendant escapes
liability for personal injury or pain and suffering at the
moment the injured plaintiff dies.
Survival actions are designed to avoid another ancient common
law rule: actio personalis moritur cum persona ("a personal
action dies with the person"). See 2 S. Speiser, Recovery for
Wrongful Death § 14.1 (2d ed. 1975 & Supp. 1990); see also
Livingston, Survival of Tort Actions: A Proposal for California
Legislation, 37 Calif.L.Rev. 63 (1949). This rule is ancient;
it was common among the English courts of the fifteenth
century. Malone, supra, at 1044 n. 1 (citing 3 W. Holdsworth, A
History of English Law 576 (3d ed. 1923)). At one time,
commentators thought the maxim originated in Roman
jurisprudence, but this assumption has since been abandoned.
See Malone, supra, at 1051 (citing H. Goudy, Two Ancient
Brocards, in Essays in Legal History §§ 18-22 (P. Vinogradoff
There are some explanations, though none particularly
compelling, for why causes of action were thought to expire
upon the death of plaintiff or defendant. As noted above, one
reason is the lack of anything to award a plaintiff once the
state had exacted its punishment. Moreover, when the plaintiff
died, his need for vengeance and satisfaction from the
defendant also seemed to expire. See W. Keeton, D. Dobbs, R.
Keeton & D. Owen, Prosser & Keeton on Torts § 126, at 942 (5th
ed. 1984). With a conceptual shift away from punishment and
toward compensation in the law, survival recovery followed. See
id. In a sense, the value of the inchoate claim "earned" by the
deceased during his or her lifetime could be passed on after
death like other assets.
At first, only a limited group of persons could recover
survival damages for injury to others. Masters recouped for
losses to servants; husbands could recover for injuries to wife
and child. Wives and servants, however, had no corresponding
3 W. Blackstone, Commentaries *143.
Under the FELA, courts have awarded pain and suffering
damages for the period of time between injury and death. In one
case, the court held that the administrator of a railway
switchman's estate could recover for the 3 1/2 hours of
conscious pain and suffering that he experienced before his
death. Wetherbee v. Elgin, Joliet & E. Ry. Co., 191 F.2d 302,
308 (7th Cir. 1951). Although the FELA applies by its terms
only to federal employees, the statute is useful as an analogue
since it specifically provides that a survival action includes
damages for "[a]ny right of action" the deceased would have
been able to maintain if he or she had survived. See 45 U.S.C. § 59
(1986) (emphasis added).
2. Federal Tort Claims Act
3. Longshore and Harbor Workers' Compensation Act
The Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901
et seq. (1986) ["LHWCA"], addresses compensation for
employees injured on or near navigable waters of the United
States. Section 903 provides:
Id. § 903(a). The LHWCA excludes federal employees from
coverage. Id. § 903(b).
Under the LHWCA, courts have awarded pain and suffering
survival damages, even where the time period between injury and
death was brief. For example, in Hinson v. SS Paros,
461 F. Supp. 219 (S.D.Tex. 1978), the court approved a $5,000 award
for the "fleetest seconds" between the time a longshoreman fell
overboard and then drowned. Id. at 222. Another court sustained
an even higher award for the excruciating pain suffered by a
sulphur company employee when molten sulphur fell on him and
killed him as he was unloading a barge. Drachenberg v. Canal
Barge Co., 621 F.2d 760, 762 (5th Cir. 1980) (district court's
award of $40,000 was appropriate; even higher award might have
4. Jones Act
Where a seaman is injured on board a vessel, the Jones Act
provides a cause of action against ship owners for their
negligence. The statute provides:
46 U.S.C. App. § 688(a) (Supp. 1991). Although the Jones Act
itself has no survival provision, it affords the same remedies
as the FELA. See id. ("all statutes of the United States
modifying or extending the common-law right or remedy in cases
of personal injury to railway employees shall apply"); Cox v.
, 622 n. 2 (3d Cir.) (en banc), cert.
, 46 L.Ed.2d 392 (1975)
("[T]he judicial principles developed under the FELA are also
applicable to the Jones Act.").
A number of cases decided under the Jones Act have awarded
pain and suffering damages for the interval between injury and
death, even where the time period was short. For example, the
Ninth Circuit in Cook v. Ross Island Sand & Gravel Co.,
626 F.2d 746, 752 (9th Cir. 1980), approved the damage award of
$35,000 for a deck-hand's 2 1/2 minutes of conscious pain and
suffering before he drowned after falling off a tugboat into
the Columbia River. As in the case before the court today, the
pathologist estimated the period of consciousness based on an
autopsy. See id. at 748. The Ninth Circuit declined to adopt a
"stop watch approach" to determine whether the decedent had
been conscious for a legally cognizable interval of time;
rather, the court held that the inquiry should depend on the
circumstances of each case. Id. at 751.
Similarly, the court in In re Marina Mercante Nicaraguense,
S.A., 248 F. Supp. 15, 28 (S.D.N.Y. 1965) (Weinfeld, J.),
modified, 364 F.2d 118 (2d Cir. 1966), cert. denied,
385 U.S. 1005, 87 S.Ct. 710, 17 L.Ed.2d 544 (1967), let stand a damage
award of $1,500 for the decedents' two to three minutes of
conscious pain and suffering when their tugboat went down. The
court wrote that "while their suffering was short-lived, it was
intensive, excruciating and agonizing." Id. As one court wrote,
"[t]he fact that death came in a matter of minutes, or even
less, does not necessarily preclude an award for conscious pain
and suffering." Noel v. Linea Aeropostal Venezolana,
260 F. Supp. 1002, 1006 (S.D.N.Y. 1966) (plane en route to Venezuela
exploded and crashed off the New Jersey coast).
5. Civil Rights Act
The Civil Rights Act, 42 U.S.C. § 1983 (1981), provides a
cause of action where civil rights are violated by those who
act under color of state authority. Courts have awarded
conscious pain and suffering survival damages under this
statute. For example, in Berry v. City of Muskogee,
900 F.2d 1489 (10th Cir. 1990), the Tenth Circuit held that the wife of
an inmate who was killed by other inmates could recover for
pre-death pain and suffering in her civil rights action. The
court found that the damages recoverable under the Oklahoma
survival statute were too restrictive, and thus a federal
survival remedy was appropriate to vindicate the purpose of
section 1983. Id. at 1506-07.
In another case, a mother was permitted to recover for the
pain and suffering of her minor son who was killed by police
officers. Guyton v. Phillips, 532 F. Supp. 1154, 1166 (N.D.Cal.
1981) ("To deny recovery for pain and suffering would strike at
the very heart of a § 1983 action."); see also Sharpe v. City
of Lewisburg, 677 F. Supp. 1362, 1365 (M.D.Tenn. 1988) ($25,000
allowed for pain and suffering of man who lived no more than a
few minutes after being shot by police officers). The district
court in Guyton held that conflicting provisions of the
California wrongful death statutes were preempted, just as In
re Lockerbie determined that state statutes are preempted by
the Warsaw Convention wrongful death action. See 532 F. Supp. at
1166; see also McFadden v. Sanchez, 710 F.2d 907, 911 (2d Cir.
1983) (application of state survival statute not allowed if it
would bar or limit section 1983 remedies in a death action).
In addition to a section 1983 action, another section of the
Civil Rights Act explicitly provides for a survival action. The
widow or next of kin of one who dies from a conspiracy has a
cause of action against anyone who had both knowledge of the
prohibited conspiracy and power to prevent the harm.
See 42 U.S.C. § 1986 (1981).
Finally, there is a separate federal constitutional civil
rights action that would support both a death and a survival
action. See Bivens v. Six Unknown Named Agents, 403 U.S. 388,
397, 91 S.Ct. 1999, 2005, 29 L.Ed.2d 619 (1971) (petitioner had
cause of action for damages for any injuries suffered as a
result of fourth amendment violation); id. at 396, 91 S.Ct. at
2004 ("`it is . . . well-settled that where legal rights have
been invaded, and a federal statute provides for a general
right to sue for such invasion, federal courts may use any
available remedy to make good the
wrong done'") (citing Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct.
773, 777, 90 L.Ed. 939 (1946)).
The Supreme Court has held that survival recovery is
allowable in a Bivens action, and the survival claim is
governed by federal common law. See Carlson v. Green,
446 U.S. 14, 24-25, 100 S.Ct. 1468, 1474-75, 64 L.Ed.2d 15 (1980). The
Court nonetheless declined to decide the content of the
applicable federal common law. See id.; see also Weeks v.
Benton, 649 F. Supp. 1297, 1309 (S.D.Ala. 1986) (applying
Carlson by analogy to hold that Alabama wrongful death statute
may only be applied to the extent that it permits survival of
section 1983 action).
6. Death on the High Seas Act and General Maritime Law
Defendant TWA urges that the Death on the High Seas Act,
46 U.S.C. § 761 et seq. (1975) ["DOHSA"] provides the most apt
analogy under the Warsaw Convention. The DOHSA governs
liability for any tortiously caused death occurring more than
one marine league from shore. In Moragne v. States Marine
Lines, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), the
Supreme Court noted that among the possibly analogous federal
statutes, the Death on the High Seas Act is more general,
not just to a class of workers but to any
"person," . . . bas[ing] liability on conduct
violative of general maritime law. . . .
Id. at 408, 90 S.Ct. at 1791-92.
By its own terms, the DOHSA does not provide for survival
recovery. See id. § 761 ("the personal representative of the
decedent may maintain a suit for damages . . . for the
exclusive benefit of the decedent's wife, husband, parent,
child, or dependent relative"); Miles v. Apex Marine Corp., ___
U.S. ___, 111 S.Ct. 317, 327, 112 L.Ed.2d 275 (1990) ("At the
federal level, DOHSA contains no survival provision.").
Nonetheless, courts applying the statute have used both state
survival statutes and general maritime law to permit survival
In some DOHSA cases, plaintiffs are permitted to recover for
the period of conscious pain and suffering between injury and
death through state survival statutes. See, e.g., Snyder v.
Whittaker, 839 F.2d 1085, 1092 (5th Cir. 1988) (plaintiff whose
husband drowned could recover pain and suffering damages under
Texas survival statute in action under DOHSA); Canillas v.
Joseph H. Carter, Inc., 280 F. Supp. 48, 51 (S.D.N.Y. 1968)
("The silence of the Death on the High Seas Act on this subject
does not cut off a claim for ante mortem pain and suffering.").
The Supreme Court has declined to approve or disapprove the
practice of supplementing the DOHSA in this way. Offshore
Logistics, Inc. v. Tallentire, 477 U.S. 207, 215 n. 1, 106
S.Ct. 2485, 2490 n. 1, 91 L.Ed.2d 174 (1986) (declining to
address whether DOHSA may be "supplemented" by pain and
suffering recovery under some applicable state statute).
After the In re Lockerbie decision, the courts of this
circuit may not be able to use state survival statutes to
supplement a Warsaw Convention cause of action in the way the
courts have done under the DOHSA. Other courts, however, have
supplemented the DOHSA with a survival right based on general
maritime law. See, e.g., Favaloro v. S/S Golden Gate,
687 F. Supp. 475, 480 (N.D.Cal. 1987) (although DOHSA preempts
wrongful death actions under state and general maritime law, it
does not preempt general maritime survival action for pain and
suffering). A common law survival right is engrafted onto the
DOHSA in the same way that it would become part of the federal
common law under the Warsaw Convention.
Under the general maritime right of survival, a pre-death
conscious pain and suffering award is appropriate. See, e.g.,
Law v. Sea Drilling Corp., 510 F.2d 242, 249-50 (5th Cir. 1975)
(general maritime law permits recovery for conscious pain and
suffering of employee killed when ramp on an oil rig collapsed
in the Gulf of Mexico); Greene v. Vantage Steamship Corp.,
466 F.2d 159, 166 & n. 9 (4th Cir. 1972) (pain and suffering
appropriate in wrongful death action
under general maritime law, since "[c]learly, there is no
federal policy against [it]").
The Supreme Court recently declined to decide whether there
is a general maritime right of survival. Miles v. Apex Marine
Corp., ___ U.S. ___, 111 S.Ct. 317, 327, 112 L.Ed.2d 275
(1990). The Court wrote:
Miles argues that we should follow the Courts of
Appeals and recognize a general maritime survival
right. Apex urges us to reaffirm the traditional
maritime rule and overrule these decisions. We
decline to address the issue, because its
resolution is unnecessary to our decision on the
narrow question presented. . . .
Even if the Supreme Court found that there is no maritime
survival right, such a ruling would not necessarily bar
survival rights under the Warsaw Convention because, as already
noted, the general tort consensus in non-admiralty cases is to
recognize a survival cause of action.
Executive Jet Aviation v. City of Cleveland, 409 U.S. 249,
264-65, 93 S.Ct. 493, 502-03, 34 L.Ed.2d 454 (1972), cited by
the parties, is inapposite. In Executive Jet, the Supreme Court
examined the tests for admiralty tort jurisdiction, holding
that an aviation tort must bear a significant relationship to
traditional maritime activity and not simply occur over
navigable waters. Id. at 269, 93 S.Ct. at 505. An aircraft had
hit a flock of sea gulls shortly after takeoff from Cleveland
en route to Maine and New York and then crashed into Lake Erie.
Since the intended course was almost entirely over land and
there was no significant relationship to traditional maritime
activity, there could be no admiralty jurisdiction in the
absence of an applicable federal statute. See id. at 273-75, 93
S.Ct. at 506-08. Executive Jet is a decision delineating
jurisdictional, not substantive, law. Federal jurisdiction in
the instant case is based on the Warsaw Convention and not on
the DOHSA or on admiralty jurisdiction, and thus Executive Jet
is irrelevant to the issue of whether a cause of action for
pain and suffering survives death.
It is important to note that the process of fashioning
federal common law under the Warsaw Convention does not
actually involve applying the DOHSA. Thus, the DOHSA cannot be
used to inhibit federal courts from recognizing a survival
action under federal Warsaw Convention treaty common law or
general maritime law. Some kind of recovery for conscious pain
and suffering is permissible under each of the federal statutes
examined which provides for wrongful death claims, and in the
majority of states. Given this overwhelming evidence, it is
unnecessary to choose from among the federal statutes for one
analogue. Properly construed, all lead to allowance for pain
and suffering after injury but before death.
V. POLICIES SERVED BY SURVIVAL RECOVERY FOR MENTAL AND
A. FULL COMPENSATION
There is a rich history in American law of compensating those
injured for the full harm suffered, whether physical injury
alone or in combination with mental anguish. See Restatement
(Second) of Torts § 901(a) (1979). The court in In re Lockerbie
addressed the question of whether punitive damages were
sufficiently compensatory in nature to be proper under the
Warsaw Convention. After analyzing the history and purpose of
the Convention, the Second Circuit concluded that any damages
awarded under the Convention must be compensatory rather than
punitive, and thus punitive damages are not allowed.
Permitting Mr. Ospina's damage award for conscious pain and
suffering is consistent with the holding of In re Lockerbie.
Pain and suffering damages are not punitive but compensatory.
See Restatement (Second) of Torts § 912 comment b (1979). That
is, the plaintiff who receives damages for pain and suffering
gains redress for the actual harm caused. Mr. Ospina's damage
award is proper under Second Circuit precedent. As the In re
Lockerbie court wrote:
[W]e agree that the way in which the Convention
uses the term [dommage survenu] indicates that
Article 17 refers to
actual harm caused by an accident rather than
generalized legal damages. . . .
The context within which the Convention was
written adds further support to the conclusion
that the damages contemplated by Article 17 are
In re Lockerbie, 928 F.2d at 1281.
Other courts have also concluded that "dommage survenu"
refers to actual harm, which includes pain and suffering.
See In re Korean Air Lines Disaster of September 1, 1983,
932 F.2d 1475, 1485 (D.C. Cir. 1991) ("[t]he words `damage
sustained' do not refer to legal damages; they refer to actual
harm experienced"); Floyd v. Eastern Airlines, 872 F.2d 1462,
1487 n. 42 (11th Cir. 1989) ("While mental injuries . . . are
intangible in nature, allowing recovery for them is intended to
be compensatory, and is in no way meant to penalize the
wrongdoer.") (citation omitted), rev'd on other grounds, ___
U.S. ___, 111 S.Ct. 1489, 113 L.Ed.2d 569 (1991); In re Air
Crash Disaster at Gander, Newfoundland, on December 12, 1985,
684 F. Supp. 927, 931 (W.D.Ky. 1987) ("Punitive damages are not
`damages sustained' by a particular plaintiff.").
B. HARMONIZING EASTERN AIRLINES v. FLOYD
Although "dommage survenu" encompasses many forms of harm, it
cannot include purely mental injury unconnected to physical
harm, following the Supreme Court's decision in Eastern
Airlines v. Floyd, ___ U.S. ___, 111 S.Ct. 1489, 113 L.Ed.2d
569 (1991). Plaintiffs in Floyd were passengers on a plane
which lost power in three engines and began a rapid descent
toward the Atlantic Ocean. After futile attempts to restart the
engines, the crew notified the passengers that the plane would
be ditched. Moments later, the crew restored power and the
plane landed at Miami International Airport without further
incident. Plaintiffs sued the airline for the extreme mental
anguish they suffered in their brush with disaster.
After surveying the legal meaning of the phrase "dommage
survenu" in Article 17, the structure and purposes of the
Convention, the negotiating history surrounding its adoption,
and the post-signing conduct of the signatories, the Court
concluded that psychic injury alone will not sustain a damage
[A]n air carrier cannot be held liable under
Article 17 when an accident has not caused a
passenger to suffer death, physical injury, or
physical manifestation of the injury.
Eastern Airlines v. Floyd, 111 S.Ct. at 1502.
Since the plaintiffs in Eastern Airlines v. Floyd had not
suffered or alleged any physical injury, the Court declined to
decide whether "dommage survenu" covers psychic injury in
combination with physical damage. The Court wrote:
[W]e express no view as to whether passengers can
recover for mental injuries that are accompanied
by physical injuries.
Id. Nevertheless, the implication of Floyd is that psychic
damage accompanying physical injury is recoverable.
The Supreme Court's opinion in Floyd contrasted purely mental
injury with mental injury that is accompanied by physical harm.
For example, in the section examining French case law, the
[W]e have been directed to no French case prior to
1929 that allowed recovery . . . for the type of
mental injury claimed here — injury caused by
fright or shock — absent an incident in which
someone sustained physical injury.
Eastern Airlines v. Floyd, ___ U.S. ___, 111 S.Ct. 1489, 1496,
113 L.Ed.2d 569 (1991) (emphasis in original). All the evidence
suggested, the Supreme Court concluded, that the French legal
meaning of the phrase "dommage survenu" could not apply to
mental injury alone, but that it would apply to mental injury
connected with physical harm. Both the documents the Court
examined — which need not be reconsidered here — and the
rhetorical force of the opinion, as well as the plain language
of the treaty, point to recovery for those who suffer both
physical and mental injury in combination. See generally