id. at 677 (on motion for rehearing) ("Warsaw Convention creates the exclusive cause of action for the victims of international air disasters ") (emphasis added).
Neither the Warsaw Convention's drafting history nor the consistent interpretation of that history by courts and commentators supports Eastern's position that the drafters of the Convention were concerned with establishing uniform rules governing air carriers' liability for all deaths or bodily injuries occurring on international air flights; rather, the drafting history indicates that the Convention's goal was to provide for uniformity in air carriers' liability for deaths or bodily injuries caused by accidents, especially large-scale air disasters. "The primary purpose of the contracting parties to the Convention [was to] limit the liability of air carriers in order to foster the growth of the fledgling commercial aviation industry." Eastern Airlines, Inc. v. Floyd, 111 S. Ct. at 1499. "It was expected that [the Convention's limitation of liability], applied uniformly on international flights . . . would enable airlines to attract capital that might otherwise be scared away by the fear of a single catastrophic accident." Lowenfeld & Mendelsohn, The United States and the Warsaw Convention, 80 Harv. L. Rev. 497, 499 (1967). "Clearly the overriding purpose [of the Convention was] to limit air carriers' potential liability in the event of accidents." In re Air Disaster at Lockerbie, 928 F.2d 1267, 1270 (2d Cir.) (emphasis added), cert. denied, 112 S. Ct. 331, 116 L. Ed. 2d 272 (1991).
C. Case Law
The Supreme Court has twice expressly declined to address whether a plaintiff may institute an action under state law when the Warsaw Convention liability rules do not govern the action asserted by the plaintiff. See Eastern Airlines, Inc. v. Floyd, 111 S. Ct. at 1502; Air France v. Saks, 470 U.S. 392, 408, 84 L. Ed. 2d 289, 105 S. Ct. 1338 (1985). The Third Circuit, in Abramson v. Japan Airlines Co., 739 F.2d 130 (3d Cir. 1984), cert. denied, 470 U.S. 1059, 105 S. Ct. 1776, 84 L. Ed. 2d 835 (1985), answered this question in the affirmative. In Abramson, the facts of which are quite similar to the instant case, a passenger on an international flight suffered an attack from a preexisting condition, paraesophageal hiatal hernia. The passenger alleged that the negligent conduct of the carrier and its employees aggravated the preexisting condition, which worsened the effects of the attack and ultimately required surgery. The passenger sued the air carrier under both the Warsaw Convention and state law. The Third Circuit found that no accident had occurred, thereby foreclosing the possibility of the passenger's recovering against the air carrier under the Warsaw Convention, and affirmed the district court's grant of summary judgment against the passenger on the Warsaw Convention claim. The Third Circuit did, however, vacate the district court's grant of summary judgment against the passenger on the state law claim, concluding that the Warsaw Convention does not exclusively govern claims brought by passengers against air carriers arising out of international flights, and that when an action does not arise under the Warsaw Convention, state law claims may be instituted against the air carrier. Last year, the Second Circuit endorsed the reasoning and the result of the Third Circuit's Abramson decision, concluding that when a plaintiff's claim "does not arise under the Warsaw Convention," the plaintiff "plainly may institute" such an action against an air carrier under state law. In re Air Disaster at Lockerbie, 928 F.2d at 1273.
Eastern fails to acknowledge the Second Circuit's affirmation in Lockerbie of the Abramson decision; instead, it cites a long list of cases for the proposition that the Warsaw Convention precludes all state-law actions for death or bodily injury occurring on international air flights. Eastern's reliance on these cases is, however, entirely misplaced. These cases do not hold that the Warsaw Convention absolutely precludes a plaintiff from instituting an action against an air carrier under state law for death or bodily injury occurring on an international air flight. Rather, in nearly every case cited by Eastern, the plaintiff asserted a claim under the Warsaw Convention; the court found that no accident took place, so that the air carrier could not be held liable under Article 17 of the Convention; and, accordingly, the court dismissed the plaintiff's Warsaw Convention claim. See Padilla v. Olympic Airways, 765 F. Supp. 835 (S.D.N.Y. 1991) (plaintiff sued "solely under the terms of the Warsaw Convention and not on any common law claim"; no accident occurred; air carrier held not liable under Warsaw Convention); Mazze v. Swiss Air Transport Co., 21 Av. Cas. (CCH) 17,320 (S.D.N.Y. 1988) (passenger sued "under the Warsaw Convention"; no accident occurred; air carrier held not liable under Warsaw Convention); Margrave v. British Airways, 643 F. Supp. 510 (S.D.N.Y. 1986) (plaintiff sued under Warsaw Convention; no accident occurred; air carrier held not liable under Warsaw Convention); Salce v. Aer Lingus Air Lines, 19 Av. Cas. (CCH) 17,377 (S.D.N.Y. 1985) ("plaintiffs based their claim on the Warsaw Convention"; no accident occurred; air carrier held not liable under Warsaw Convention); Warshaw v. Trans World Airlines, Inc., 442 F. Supp. 400 (E.D. Pa. 1977) (plaintiff sued "under the provisions of the Warsaw Convention"; no accident occurred; air carrier held not liable under Warsaw Convention). In none of these cases
does it appear that a court dismissed an action asserted under state law, as opposed to the Warsaw Convention, for death or bodily injury that occurred on an international air flight but was not caused by an accident.
If the interpretation of the Warsaw Convention that Eastern advances is someday to prevail, one of three things must happen: either the text of the Warsaw Convention must be amended, or the Second Circuit must alter the clear position it expressed in Lockerbie, or the Supreme Court must answer the question it has twice declined to answer. Until one of these three events occurs, however, this Court will follow the text of the Warsaw Convention and the Second Circuit's Lockerbie analysis, and will not preclude an action under state law for death or bodily injury occurring on an international air flight when the death or bodily injury was not caused by an accident. Eastern has therefore failed to set forth any matters or controlling decisions that, if considered by the Court, would have mandated a different result as to Eastern's initial motion for summary judgment. Eastern's motion for reargument pursuant to Civil Rule 3(j) of the Local Rules of this District is therefore denied.
II. Certification of Interlocutory Appeal
Eastern has moved, in the alternative, for this Court to certify an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Section 1292(b) provides in part that:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order.
With respect to Eastern's motion, the text of the Warsaw Convention states that causes of action arising under Article 17 -- i.e., actions against air carriers for death or bodily injury caused by an accident on an international air flight -- must be brought exclusively pursuant to the terms of the Warsaw Convention, but does not preclude state-law actions for death or bodily injury not caused by an accident. Furthermore, the Second Circuit has stated that a plaintiff such as the plaintiff in the instant action "plainly may institute" an action under state law for death or bodily injury suffered on an international air flight, when the death or bodily injury was not caused by an accident. In re Air Disaster at Lockerbie, 928 F.2d at 1273. There is therefore no "substantial ground for difference of opinion" on the issue of whether plaintiff may maintain her state-law negligence action, and no reason for this Court to certify an immediate appeal. Accordingly, Eastern's motion for certification pursuant to 28 U.S.C. § 1292(b) is denied.
For the reasons set forth above, Eastern's motion for reargument pursuant to Civil Rule 3(j) of the Local Rules of this District or, in the alternative, for certification of an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) is denied in its entirety. Counsel for plaintiff and Eastern shall appear before this Court for a pre-trial status conference on Friday, April 10, 1992, at 2:00 p.m.
New York, New York
March 9, 1992
Peter K. Leisure