Burnett v. Trans World Airlines, Inc.

• Decision Date: 13 December 1973
• Docket Number: Civ. No. 9735.
• Citation: 368 F. Supp. 1152
• Parties: T. T. BURNETT and Winifred Burnett, Plaintiffs, v. TRANS WORLD AIRLINES, INC., a corporation, Defendant.
• Court: U.S. District Court — District of New Mexico

368 F. Supp. 1152

T. T. BURNETT and Winifred Burnett, Plaintiffs, v. TRANS WORLD AIRLINES, INC., a corporation, Defendant.

Civ. No. 9735.

United States District Court, D. New Mexico, Albuquerque Division.

December 13, 1973.

Richard E. Ransom, Smith & Ransom, Albuquerque, N. M., for plaintiffs.

Jackson G. Akin, Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, N. M., Chadbourne, Parke, Whiteside & Wolff, New York City, for defendant.

MEMORANDUM OPINION

BRATTON, District Judge.

Jurisdiction in this removed personal injury action is founded on diversity of citizenship. The parties have submitted to the court for disposition cross-motions for summary judgment pursuant to Rule 56, Fed.R.Civ.P. Plaintiff moves for partial summary judgment on the issue of liability while defendant moves for summary judgment by dismissal of the action.

Plaintiffs seek recovery under Article 17 of the Warsaw Convention, 49 Stat. 3018, for bodily injuries and mental anguish allegedly suffered as a result of a September 6, 1970, hijacking of a Trans World Airlines jet to Amman, Jordan. The following facts and conclusions are uncontroverted, having been agreed to by stipulation of the parties, and represent the legal and factual premises upon which these motions are considered by the court.

Plaintiffs T. T. Burnett and Winifred Burnett, residents of Albuquerque, New Mexico, entered into contracts of carriage with the defendant in the summer of 1970 for a journey through Asia and certain Mediterranean countries. Having completed the course of their travels, plaintiffs boarded TWA flight 741 in Athens on September 6, 1970, en route to New York City. Unfortunately, however, the Burnetts soon learned that an additional country, unmentioned in their brochures, would be added to their itinerary. Shortly after boarding additional passengers in Frankfurt, the aircraft deviated from its scheduled course and it was announced that the plane was being hijacked by members of the Popular Front for the Liberation of Palestine. The diverted aircraft headed for Jordan, and a landing was effected on a dry lake bed in the desert outskirts of Amman.

During their period of desert captivity, the plaintiffs experienced severe emotional trauma from the actions of the hijackers, fearing that their lives might be in jeopardy. They remained imprisoned aboard the aircraft for six days in cramped quarters, being deprived of regular food and drink, and bodily suffered from the great temperature extremes of the desert. In addition, T. T. Burnett suffered from the swelling of his feet and the filling of his ankles with fluid. Both plaintiffs also suffered various other physical ailments from their confinement.

Both parties agree that the Warsaw Convention and the Montreal Agreement are applicable and that the carrier is liable if an "accident" taking place on board the aircraft or in the course of any of the operations of embarking or disembarking caused damages sustained in the event of a "wounding or any other bodily injury" to either plaintiff. It is agreed that an accident did take place and that the liability of the carrier is absolute and is limited to $75,000.

The Warsaw Convention, concluded in October, 1929, marked an official cognizance by the signatory nations of the dawning of the commercial air age. The delegates, realizing the potential legal hazards posed by the expansion of international air travel, attended the Conference with a twofold purpose in mind. Cognizant of the fact that international air transport would link nations of vastly diverse cultural and legal systems, it was hoped that a certain degree of legal uniformity could be achieved by reference to a controlling body of law to govern common problems. Secondly, the delegates desired to limit the potential liability of the airlines from the result of air accidents.

The United States was not an original party to the Warsaw proceedings and only later, on October 29, 1934, did President Roosevelt proclaim the nation's adherence to the Convention after the favorable recommendation of the Senate. The official notice of adherence had been deposited in the archives of the Ministry for Foreign Affairs of Poland on July 31, 1934. The subsequent history of the American participation in Warsaw reveals a continuing and growing disaffection within the United States concerning certain provisions of the Convention. Most vehemently disliked were the articles providing that liability of the carrier was based upon proof of negligence and that the damage limitation was a mere $8,300. Finally, dissatisfaction swelled to the point that our government formally deposited its notice of denunciation of the Convention in Warsaw on November 15, 1965, becoming effective six months thereafter.

However, despite these ominous manifestations of disaffection, continuing United States involvement in a uniform scheme of international air law was saved by the work product of the Montreal Conference, convened in February, 1966. Although these proceedings themselves did not result in an accord among the attending states, the proposals there submitted by the United States became the essence of the so-called Montreal Agreement,¹ effective as of May 16, 1966. This agreement introduced two major modifications in the Warsaw scheme of liability in that: (1) the carrier's limitation of liability for the death, wounding, or other bodily injury of a passenger was elevated to $75,000 and; (2) the carrier could no longer avail itself of the due care defense with respect to such claims, i. e., a system of absolute liability was imposed. For an extensive discussion of the Warsaw-Montreal proceedings see Lowenfeld and Mendelsohn, The United States and the Warsaw Convention, 80 Harv.L.Rev. 497 (1967).

With this background in perspective, the issues of the case at hand may be discussed. The principal issues for consideration by the court are: (1) whether mental anguish alone, without accompanying bodily injuries, is compensable under Article 17 of the Warsaw Convention and; (2) whether mental anguish resulting from a bodily injury is compensable under Article 17. Article 17 provides:

"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." (Emphasis added.)

The key phrase for interpretation is "bodily injury." Plaintiff has argued that since this is a removed action, state law controls in matters of substance, therefore compelling the court to look to the tort law of New Mexico to discover the scope of the phrase in controversy. To the contrary, however, the meaning of the Warsaw Convention is a matter of federal law. It is a sovereign treaty and as such is the supreme law of the land, preempting local law in the areas where it applies. United States Constitution, Art. VI, cl. 2; United States v. Belmont, 301 U.S. 324, 57 S.Ct. 758, 81 L.Ed. 1134 (1937); Smith v. Canadian Pacific Airways, Ltd., 452 F.2d 798 (2d Cir. 1971).

In Noel v. Linea Aeropostal Venezolana, 247 F.2d 677, 679 (2d Cir. 1957), the court observed, in discussing the proper interpretation of the Warsaw Convention:

"Although jurisdiction of the first count under the Warsaw Convention is allegedly based on diversity, the law to be applied in this case is not state law but a federal treaty. It is applied in the state courts not because it expresses a state policy which a federal court must follow, but because it expresses federal policy which a state court must follow."

In interpreting the meaning of the terms employed in the Convention, the French legal meaning must govern. Block v. Compagnie Nationale Air France, 386 F.2d 323, 330 (5th Cir. 1967), cert. den. 392 U.S. 905, 88 S.Ct. 2053, 20 L.Ed.2d 1363 (1968); Husserl v. Swiss Air Transport Company, Ltd., 351 F.Supp. 702, 708 (S.D.N.Y.1972). French was the sole official language of the Convention, Article 36 stating that, "This convention is drawn up in French in a single copy * * *" The United States deposited its notice of adherence to the official French version on file in the archives of the Ministry for Foreign Affairs of Poland. Furthermore, the Statutes at Large contain not only the English translation but the official French text as well. 49 Stat. 3000 et seq. It follows also that by looking to one language for guidance in interpretation, the policy of uniformity which the delegates sought to implement may thereby be achieved.

Although the ultimate question presented is the construction of a treaty of the United States and therefore a question of domestic law, the court must at the outset ascertain the meaning of the Warsaw Convention drawn in French in order to determine what that domestic law is. Thus, the court is essentially confronted with the determination of a question of foreign law. However, this finding no longer affects the method of inquiry into its substance. Historically, the determination of foreign law in the federal system had been considered a question of fact. However, Rule 44.1,² Fed.R.Civ.P., enacted in 1966, sounded the death knell to this approach by mandating that all such questions in the future should be treated as questions of law. See Wright and Miller, Federal Practice and Procedure § 2441 et seq. (1971) and Bamberger v. Clark, 129 U.S.App.D.C. 70, 390 F.2d 485, 488 (1968). Such a determination therefore does not obstruct the court's disposition of a motion for summary judgment. See Instituto Per Lo Sviluppo Economico Dell' Italia Meridionale v. Sperti Prods., Inc., 323 F.Supp. 630, 635 (S.D.N.Y.1971); First Nat'l. Bank of Arizona v. British Petroleum Co., 324 F.Supp. 1348, 1354-1355 (S.D.N.Y. 1971). See also Caribbean Steamship Co. v. La Societe Navale Caennaise, 140 F.Supp. 16, 20-21 (E.D.Va.1956).

Since the...