In re Inflight Explosion on Trans World Airlines

• Citation: 778 F. Supp. 625
• Decision Date: 21 November 1991
• Docket Number: MDL No. 727 (JBW).
• Parties: 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).
• Court: U.S. District Court — Eastern District of New York

778 F. Supp. 625

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).

MDL No. 727 (JBW).

United States District Court, E.D. New York.

November 21, 1991.

Nicholas Gilman, Gilman, Olson & Pangia, Washington, D.C., Fredric Lewis, New York City, for plaintiffs.

Michael J. Crofton, John N. Romans, Katten, Muchin & Zavis, New York City, for defendant.

                                                      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 .......................................................... 636
                     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
                

WEINSTEIN, District Judge:

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:

(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.

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) ("The 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.

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