The opinion of the court was delivered by: JOHN R. BARTELS
MEMORANDUM - DECISION AND ORDER
Plaintiff Yin Yee Li alleges that on or about March 8, 1991, she and her daughter, Jennifer Li, a two-year old infant, boarded a plane for a trip from Tokyo, Japan to New York. She states that during the United Air Lines flight defendant Abdul Quayyum Quraishi ("Quraishi") exposed himself and urinated into the mouth and eyes and over the body of the infant Jennifer Li and onto her own lap. As a result, she alleges severe emotional and psychological damage to both her child and herself.
Plaintiffs bring this diversity action against Quraishi and United Air Lines, Inc. ("UAL") for negligence and intentional misconduct. UAL moves for summary judgment under the Warsaw Convention
on the ground that it bars recovery for purely psychological damages even if caused by intentional misconduct. Plaintiffs do not oppose the motion and therefore UAL has been granted summary judgment with respect to plaintiffs' complaint against UAL. As to the cross-claim against UAL by the co-defendant Quraishi, assuming that UAL's action is directly causative of the plaintiffs' injuries and that the cross-claim is valid, the Court also grants UAL summary judgment with respect to Quraishi's cross-claim.
The cross-claim must be based upon the direct liability of UAL to Quraishi. It does not depend upon any possible liability of UAL to the plaintiffs. But since the plaintiffs no longer make a claim against UAL, Quraishi does not have a cross-claim against UAL. Under the common law approach, Quraishi can only hold UAL liable as a third party defendant. Plaintiffs have alleged both negligence and intentional and wilful misconduct against both defendants. UAL is alleged to have caused the damages because of intentional misconduct in permitting Quraishi to board the plane and to thereafter serve him alcoholic beverages as an intoxicated person. This is now only Quraishi's claim since plaintiffs no longer make a claim against UAL. UAL denies that it engaged in wilful misconduct and states that even if it were guilty of the same it would be immune under the Warsaw Convention from liability for purely psychological injuries.
"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." 49 Stat. 3018 (Emphasis added).
Article 25 reads as follows:
"(1) 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 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 wilful misconduct.
(2) Similarly the carrier shall not be entitled to avail himself of the said provisions, if the damage is caused under the same circumstances by any agent of the carrier acting within the scope of his employment." 49 Stat. 3020 (Emphasis added).
Reading the two articles together, it appears that the carrier is liable for any damages caused by its wilful misconduct. In its recent decision, Eastern Airlines v. Floyd, 113 L. Ed. 2d 569, U.S. , 111 S. Ct. 1489 (April 17, 1991), the Supreme Court, relying upon the French language (the official language of the Convention) in interpreting the law, history, and purposes of the Convention, determined that Article 17 did not cover purely mental or psychological injuries but did cover bodily injury. It did not consider Article 25 and thus did not state whether such rule would hold true as to purely mental and psychological injuries when there was wilful misconduct.
However, in In Re Air Disaster at Lockerbie, Scotland on December 21, 1988, 928 F.2d 1267 (2nd Cir., March 22, 1991), the Second Circuit Court of Appeals addressed the question of whether the Warsaw Convention permits punitive damages when the carrier is guilty of wilful misconduct. Lockerbie first decided that "damage sustained" in Article 17 ("dommage survenu") is not meant to encompass punitive damages. It then ...