El Al Israel Airlines v Tsui Yuan Tseng

Decision Date12 January 1999
Docket Number97475
Citation142 L.Ed.2d 576,119 S.Ct. 662,525 U.S. 155
CourtU.S. Supreme Court

Justice Ginsburg delivered the opinion of the Court.

Plaintiff-respondent Tsui Yuan Tseng was subjected to an intrusive security search at John F. Kennedy International Airport in New York before she boarded an El Al Israel Airlines May 22, 1993 flight to Tel Aviv. Tseng seeks tort damages from El Al for this occurrence. The episode-in-suit, both parties now submit, does not qualify as an "accident" within the meaning of the treaty popularly known as the Warsaw Convention, which governs air carrier liability for "all international transportation." 1 Tseng alleges psychic or psychosomatic injuries, but no "bodily injury," as that term is used in the Convention. Her case presents a question of the Convention's exclusivity: When the Convention allows no recovery for the episode-in-suit, does it correspondingly preclude the passenger from maintaining an action for damages under another source of law, in this case, New York tort law?

The exclusivity question before us has been settled prospectively in a Warsaw Convention protocol (Montreal Protocol No. 4) recently ratified by the Senate.2 In accord with the protocol, Tseng concedes, a passenger whose injury is not compensable under the Convention (because it entails no "bodily injury" or was not the result of an "accident") will have no recourse to an alternate remedy. We conclude that the protocol, to which the United States has now subscribed, clarifies, but does not change, the Convention's exclusivity domain. We therefore hold that recovery for a personal injury suffered "on board [an] aircraft or in the course of any of the operations of embarking or disembarking," Art. 17, 49 Stat. 3018, if not allowed under the Convention, is not available at all.

The Court of Appeals for the Second Circuit ruled otherwise. In that court's view, a plaintiff who did not qualify for relief under the Convention could seek relief under local law for an injury sustained in the course of international air travel. 122 F.3d 99 (1997). We granted certiorari, 523 U.S. ___ (1998),3 and now reverse the Second Circuit's judgment. Recourse to local law, we are persuaded, would undermine the uniform regulation of international air carrier liability that the Warsaw Convention was designed to foster.


We have twice reserved decision on the Convention's exclusivity. In Air France v. Saks, 470 U.S. 392 (1985), we concluded that a passenger's injury was not caused by an "accident" for which the airline could be held accountable under the Convention, but expressed no view whether that passenger could maintain "a state cause of action for negligence." Id., at 408. In Eastern Airlines, Inc. v. Floyd, 499 U.S. 530 (1991), we held that mental or psychic injuries unaccompanied by physical injuries are not compensable under Article 17 of the Convention, but declined to reach the question whether the Convention "provides the exclusive cause of action for injuries sustained during international air transportation." Id., at 553. We resolve in this case the question on which we earlier reserved judgment.

At the outset, we highlight key provisions of the treaty we are interpreting. Chapter I of the Warsaw Convention, entitled "Scope Definitions," declares in Article 1(1) that the "[C]onvention shall apply to all international transportation of persons, baggage, or goods performed by aircraft for hire." 49 Stat. 3014.4 Chapter III, entitled "Liability of the Carrier," defines in Articles 17, 18, and 19 the three kinds of liability for which the Convention provides. Article 17 establishes the conditions of liability for personal injury to passengers:

"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.

Article 18 establishes the conditions of liability for damage to baggage or goods. 49 Stat. 3019.5 Article 19 establishes the conditions of liability for damage caused by delay. Ibid.6 Article 24, referring back to Articles 17, 18, and 19, instructs:

"(1) In the cases covered by articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this convention.

"(2) In the cases covered by article 17 the provisions of the preceding paragraph shall also apply, without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights." Id., at 3020.7


With the key treaty provisions as the backdrop, we next describe the episode-in-suit. On May 22, 1993, Tsui Yuan Tseng arrived at John F. Kennedy International Airport (hereinafter JFK) to board an El Al Israel Airlines flight to Tel Aviv. In conformity with standard El Al preboarding procedures, a security guard questioned Tseng about her destination and travel plans. The guard considered Tseng's responses "illogical," and ranked her as a "high risk" passenger. Tseng was taken to a private security room where her baggage and person were searched for explosives and detonating devices. She was told to remove her shoes, jacket, and sweater, and to lower her blue jeans to midhip. A female security guard then searched Tseng's body outside her clothes by hand and with an electronic security wand.

After the search, which lasted 15 minutes, El Al personnel decided that Tseng did not pose a security threat and allowed her to board the flight. Tseng later testified that she "was really sick and very upset" during the flight, that she was "emotionally traumatized and disturbed" during her month-long trip in Israel, and that, upon her return, she underwent medical and psychiatric treatment for the lingering effects of the body search. 122 F.3d 99, 101 (CA2 1997) (internal quotation marks omitted).

Tseng filed suit against El Al in 1994 in a New York state court of first instance. Her complaint alleged a state law personal injury claim based on the May 22, 1993 episode at JFK. Tseng's pleading charged, inter alia, assault and false imprisonment, but alleged no bodily injury. El Al removed the case to federal court.

The District Court, after a bench trial, dismissed Tseng's personal injury claim. See 919 F. Supp. 155 (SDNY 1996). That claim, the court concluded, was governed by Article 17 of the Warsaw Convention, which creates a cause of action for personal injuries suffered as a result of an "accident in the course of any of the operations of embarking or disembarking," 49 Stat. 3018. See 919 F. Supp., at 157 158. Tseng's claim was not compensable under Article 17, the District Court stated, because Tseng "sustained no bodily injury" as a result of the search, id., at 158, and the Convention does not permit "recovery for psychic or psychosomatic injury unaccompanied by bodily injury," ibid. (citing Floyd, 499 U.S., at 552). The District Court further concluded that Tseng could not pursue her claim, alternately, under New York tort law; as that court read the Convention, Article 24 shields the carrier from liability for personal injuries not compensable under Article 17. See 919 F. Supp., at 158.

The Court of Appeals reversed in relevant part. See 122 F.3d 99 (CA2 1997).8 The Second Circuit concluded first that no "accident" within Article 17's compass had occurred; in the Court of Appeals' view, the Convention drafters did not "ai[m] to impose close to absolute liability" for an individual's "personal reaction" to "routine operating procedures," measures that, although "inconvenien[t] and embarass[ing]," are the "price passengers pay for airline safety." Id., at 103 104.9 In some tension with that reasoning, the Second Circuit next concluded that the Convention does not shield the very same "routine operating procedures" from assessment under the diverse laws of signatory nations (and, in the case of the United States, States within one Nation) governing assault and false imprisonment. See id., at 104.

Article 24 of the Convention, the Court of Appeals said, "clearly states that resort to local law is precluded only where the incident is 'covered' by Article 17, meaning where there has been an accident, either on the plane or in the course of embarking or disembarking, which led to death, wounding or other bodily injury." Id., at 104 105. The court found support in the drafting history of the Convention, which it construed to "indicate that national law was intended to provide the passenger's remedy where the Convention did not expressly apply." Id., at 105. The Second Circuit also rejected the argument that allowance of state-law claims when the Convention does not permit recovery would contravene the treaty's goal of uniformity. The court read our decision in Zicherman v. Korean Air Lines Co., 516 U.S. 217 (1996), to "instruct specifically that the Convention expresses no compelling interest in uniformity that would warrant supplanting an otherwise applicable body of law." 122 F.3d, at 107.


We accept it as given that El Al's search of Tseng was not an "accident" within the meaning of Article 17, for the parties do not place that Court of Appeals conclusion at issue. See supra, at 7, n. 9. We also accept, again only for purposes of this decision, that El Al's actions did not constitute "wilful misconduct"; accordingly, we confront no issue under Article 25 of the Convention, see supra, at 5, n. 7.10 The parties do not dispute that the episode-in-suit occurred in international transportation in the course of embarking.

Our inquiry begins with the...

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