Onyeanusi v. Pan Am

• Decision Date: 18 November 1991
• Docket Number: No. 90-1861,90-1861
• Citation: 952 F.2d 788
• Parties: Onyebuchim ONYEANUSI, Appellant, v. PAN AM a/k/a Pan American World Airways, Inc. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 788

952 F.2d 788

60 USLW 2437

Onyebuchim ONYEANUSI, Appellant, v. PAN AM a/k/a Pan American World Airways, Inc.

No. 90-1861.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit Rule 12(6)

Nov. 18, 1991.

Decided Jan. 2, 1992.

John Wendell Beavers, Philadelphia, Pa., for appellant.

Thomas P. Bracaglia, Kelly, McLaughlin & Foster, Philadelphia, Pa., for appellee.

Before MANSMANN, COWEN and ROTH, Circuit Judges.

OPINION OF THE COURT

COWEN, Circuit Judge.

This appeal involves a claim against Pan Am resulting from Pan Am's alleged mishandling of human remains which it transported from New York to Nigeria. We will affirm the district court's grant of summary judgment in favor of Pan Am.

I

The unfortunate facts of this case began with the death of Olamma Onyeanusi, a Nigerian of the Ibo tribe, on October 1, 1986 in Philadelphia, while visiting her son, Onyebuchim Onyeanusi. ¹ Onyeanusi made arrangements through Videon Funeral Homes ² of Broomall, Pennsylvania to have Pan Am, an international air carrier, fly his mother's body from New York to Port Harcourt, Nigeria, via Paris. The body was scheduled to leave New York on October 15 and arrive in Nigeria on the morning of October 17. Some 20,000 members of the Ibo tribe began gathering in the Nigerian village of Uzuakoli on October 17 in anticipation of the body's arrival and a traditional tribal funeral and burial. The body, however, did not arrive until October 25. At one point during the nine day delay, the airline told Onyeanusi that his mother's remains had arrived in Port Harcourt. When he arrived at the airport, he was presented with the remains of a complete stranger.

When Olamma Onyeanusi's remains finally arrived on October 25, they were damaged and decomposed. The airtray which held the body was broken, allowing the body to be exposed to weather. Authorities at the Paris airport had allowed a French funeral home to repair the casket and rewrap the body. Consequently, when the remains arrived in Nigeria, the body was wrapped in burlap, which according to the Ibo tribe's culture signifies that the decedent committed suicide. The body was also face down in the casket, which according to the tribe's culture signifies that the circumstances of the death were dishonorable. In fact, Olamma Onyeanusi had died of pneumonia.

Onyeanusi filed suit in September 1988 against Pan Am for compensatory and punitive damages. He alleged that the decomposed nature of his mother's body "has been directly associated with the general social and business shunning of plaintiffs and has caused plaintiffs to be blamed for ill-fortunes, natural and otherwise, which befell the tribe and which, in the future, may befall upon the tribe, village and family." Appellant's Brief at 3. The district court granted Pan Am's motion for summary judgment. See Onyeanusi v. Pan American World Airways, Inc., 767 F.Supp. 654 (E.D.Pa.1990) (denying petition for reconsideration of summary judgment grant). Our review of a grant of summary judgment is plenary. Childers v. Joseph, 842 F.2d 689, 693 (3d Cir.1988).

II

At the outset, we must determine whether this case is governed by the Warsaw Convention, which regulates claims against air carriers. Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, TS No. 876 (1934), reprinted in 49 U.S.C.App. § 1502 note (1988). The Warsaw Convention, to which the United States has been a party since 1934, applies to "international transportation of persons, baggage, or goods performed by aircraft for hire." Art. 1(1). See also Sulewski v. Fed. Express Corp., 933 F.2d 180, 182 (2d Cir.1991) (Warsaw Convention, as a treaty, is equal in force to U.S. domestic law). The Convention sets forth the conditions under which notice must be given to an air carrier in the event of damage to baggage or goods. Damage to baggage must be reported to a carrier within three days of receipt, damage to goods within seven days. Art. 26(2). Delayed delivery of baggage and goods must be reported within fourteen days of receipt. Id. All notice must be given in writing. Art. 26(3). The penalty for not complying with these requirements is set forth in Article 26(4): "Failing complaint within the times aforesaid, no action shall lie against the carrier, save in the case of fraud on his part." (emphasis added).

In this case, the remains of Onyeanusi's mother arrived in Nigeria on October 25, 1986, but Onyeanusi did not give written notice to Pan Am of the damage to the body and delay in shipping until two months later on December 25, 1986. Therefore, if the Warsaw Convention applies to this case, Onyeanusi's claim is barred. Onyeanusi does not contest the date of his written notification. Rather, he argues that the Convention is not applicable to this case, since his mother's remains do not fall under any of the three categories of "persons, baggage, or goods" set forth in Article 1(1). Pan Am does not contend, nor do we believe, that human remains are "persons" or "baggage." See Guyton v. Phillips, 606 F.2d 248, 250 (9th Cir.1979) ("Generally, the term 'person,' as used in a legal context, defines a living human being and excludes a corpse or a human being who has died."), cert. denied, 445 U.S. 916, 100 S.Ct. 1276, 63 L.Ed.2d 600 (1980). Thus, the only way that the notice provisions of the Convention would bar Onyeanusi's claim is if human remains could be considered "goods."

The Court of the Appeals for the Ninth Circuit addressed this exact issue in Johnson v. American Airlines, Inc., 834 F.2d 721 (9th Cir.1987). In Johnson, remains transported from California to Ireland arrived in Ireland in a damaged condition and with personal property missing from the casket. The Ninth Circuit held that human remains must be treated as "goods" for the purpose of the Convention. Id. at 723. Cf. Blair v. Delta Air Lines Inc., 344 F.Supp. 360, 365 (S.D.Fla.1972), aff'd, 477 F.2d 564 (5th Cir.1973) (per curiam); Milhizer v. Riddle Airlines, Inc., 185 F.Supp. 110, 114 (E.D.Mich.1960), aff'd, 289 F.2d 933 (6th Cir.1961) (both finding human remains to be like other freight in domestic flights). We believe Johnson is a correct reading of the Warsaw Convention.

The only other case decided by an American court which has addressed this issue is Tarar v. Pakistan Int'l Airlines, 554 F.Supp. 471 (S.D.Tex.1982). In Tarar, the body of a deceased Pakistani was transported by Pakistan International Airlines (PIA) from Houston to Pakistan. Because of a series of mishaps, the body arrived in Pakistan four days after the scheduled burial. The decedent's family, who were devout Moslems, sued the airline for emotional damages resulting from the delay, since the Islamic faith dictates that family members must be buried promptly. The court held that human remains are not "persons, baggage, or goods" for the purposes of the Warsaw Convention since human remains are not commercial goods. ³ Id. at 478. Having concluded that human remains are not "persons, baggage, or goods," thus making the Warsaw Convention inapplicable, the court nevertheless proceeded to analyze whether PIA's alleged misconduct made the Convention's liability limitations inapplicable. Id. at 478-79. Given the seemingly contradictory conclusions of Tarar, we find it to be of limited precedential value. See Johnson, 834 F.2d at 723 n. 2 (the conclusion of Tarar that human remains are not "goods" is dictum).

Onyeanusi contends that Johnson, on which the district court relied, is at odds with the French interpretation of the Warsaw Convention. Because the official version of the treaty is in French--the version contained in the United States Code is merely an unofficial translation--we look for guidance to the French definition of "goods." See Air France v. Saks, 470 U.S. 392, 399, 105 S.Ct. 1338, 1342, 84 L.Ed.2d 289 (1985) (looking to French legal meaning in interpreting the Convention's use of the term "accident"); In re Korean Air Lines Disaster of Sept. 1, 1983, 932 F.2d 1475, 1485-87 (D.C.Cir.1991) (analyzing French concept of punitive damages for purpose of interpreting Convention), cert. denied sub nom. Dooley (Philomena) v. Korean Air Lines, Ltd., --- U.S. ----, 112 S.Ct. 616, 116 L.Ed.2d 638 (1991). "Goods" is a translation of the French word "marchandises" which has been interpreted as "anything able to be the object of a commercial transaction." Lawrence B. Goldhirsch, The Warsaw Convention Annotated: A Legal Handbook 8 (1988). Onyeanusi contends that human remains do not fit under this definition, since human remains "belong to no one, cannot be bought or sold, and have a type of value, however it can be described, which is not comfortably comprehended in its damage recovery provisions." Appellant's Brief at 9. We disagree.

We recognize that one French case has held that human cadavers are not covered by the Convention. Djedraoui c. Tamisier, 1953 RFDA 494 (Trib.Paix Paris, 31 March 1952). Although French interpretations of the Convention's terms are entitled to some deference, we are not limited to looking at French interpretations. In Air France, the Supreme Court went beyond French cases to the judicial opinions of other signatories of the Convention, including the United States. 470 U.S. at 403-05, 105 S.Ct. at 1344-45. In this case, we are confronted with an apparent conflict between a French and an American case. We believe the Ninth Circuit's interpretation in Johnson is more sound. However, because neither Johnson nor Tarar provide much explanation for their conclusions, the precise nature of human remains needs to be examined in greater detail.

Human remains can have significant commercial value, although they are not typically bought and sold like other goods. Medical schools and hospitals commonly use human cadavers for training and experiments. Human tissue and organs which are taken from the recently deceased have...