Rosman v. Trans World Airlines, Inc.

• Decision Date: 13 June 1974
• Citation: 314 N.E.2d 848,358 N.Y.S.2d 97,34 N.Y.2d 385
• Parties: , 314 N.E.2d 848, 72 A.L.R.3d 1282 Edith ROSMAN et al., Appellants, v. TRANS WORLD AIRLINES, INC., Respondent. Miriam HERMAN, an infant, by Alexander Herman, her father and natural guardian, et al., Appellants, v. TRANS WORLD AIRLINES, INC., Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 97

358 N.Y.S.2d 97

34 N.Y.2d 385, 314 N.E.2d 848, 72

A.L.R.3d 1282

Edith ROSMAN et al., Appellants, v. TRANS WORLD AIRLINES, INC., Respondent.

Miriam HERMAN, an infant, by Alexander Herman, her father and natural guardian, et al., Appellants, v. TRANS WORLD AIRLINES, INC., Respondent.

Court of Appeals of New York.

June 13, 1974.

Lee S. Kreindler, Melvin I. Friedman and Milton G. Sincoff, New York City, for appellants.

Paul G. Pennoyer, Jr., John N. Romans, Bruce W. Keihner, Frank A. Sherer, Jr. and Henry P. de Vries, New York City, for respondent.

RABIN, Judge.

At issue is whether, by virtue of defendant's absolute liability for 'death or wounding * * * or any other bodily injury' as set out in article 17 of the Warsaw Convention (49 U.S.Stat. 3014, 3018), plaintiffs may recover any damages for psychic trauma suffered on board a hijacked aircraft. The preliminary question, in the context of plaintiffs' motions for summary judgment, is whether any triable issue of fact has been presented as to the meaning of critical terms of article 17, the official text of which is in French. For reasons which follow, we conclude that the precise meaning of article 17 is not a disputed issue of fact requiring trial in this case and that summary judgment should be granted to plaintiffs on the issue of liability, to the following extent. At trial, plaintiffs should be allowed to prove damages for palpable, objective bodily injuries suffered, whether caused by psychic trauma or by the physical conditions on the aircraft, irrespective of impact, but not for psychic trauma alone.

On September 6, 1970, while en route from Tel. Aviv, Israel, to New York City, defendant's aircraft was hijacked by self-proclaimed members of the so-called Popular Front for the Liberation of Palestine, diverted to the Middle East and forced to land in the desert near Amman, Jordan. For the next six days, the passengers and crew members were held captive on or near the aircraft by Arab guerillas armed with rifles and hand grenades. On September 12, 1970, the passengers were directed onto buses and immediately thereafter forced to watch the aircraft destroyed by explosives. They were then taken to a hotel and the following day released and returned to New York. Plaintiff Edith Rosman and her two young children, Hannah and Leah, and plaintiff Miriam Herman, then age 17, were among the passengers. ¹ They claim to have suffered severe psychic trauma during the ordeal, fearing for their lives and personal safety at the hands of the terrorists. While none of them alleges to have been shot, struck or personally assaulted by any of the hijackers, the plaintiffs, all Jewish, naturally feared that their lives were in grave danger. In addition to this emotional stress, plaintiffs allege to have been damaged by the physical circumstances of their imprisonment aboard the aircraft. They claim to have been confined almost exclusively to their seats, subjected to great temperature extremes of the desert, and deprived of adequate food and water.

The Rosman and Herman actions, consolidated for the purposes of this appeal, are before us in the context of plaintiff's motions for summary judgment on the issue of liability. Defendant Trans World Airlines, Inc. (T.W.A.) is claimed to be absolutely liable for plaintiffs' physical and psychic injuries from the hijacking under the Warsaw Convention and subsequent Montreal Agreement. (Special Term directed summary judgment for plaintiffs in both cases and the Appellate Divisions, First and Second Departments, reversed and denied summary judgment finding that triable issues of fact were presented.)

Specifically, plaintiff Edith Rosman claims in her affidavit that as a result of the forced immobility, she developed a backache, swollen feet and a large discoloration of her upper legs and back. Because of inadequate sanitary facilities, she claims that her children developed boils and skin irritation. Scarcity of food and water allegedly caused her and the children substantial weight loss and dehydration. In addition, Mrs. Rosman claims that '(a)s a result of the hijacking, I have become highly nervous, tense, anxious and extremely depressed. I have become irritable to my husband and children. I have difficulty sleeping at night. I have been compelled, on my physician's prescription, to take tranquilizers, among other things. My daughters have also become nervous and restless and to this day have nightmares associated with the hijacking.'

Plaintiff Miriam Herman claims in her affidavit that she 'lost much weight, slept very little, became extremely frightened and developed a skin rash. As a result of the hijacking, I have become highly nervous, tense and anxious, and I have * * * sustained other injuries. I have been and am currently under a physician's care. I have been compelled to take, on his prescription, tranquilizers, among other things.'

Background: The Warsaw Convention

There is no dispute that defendant's liability, if any, is governed by the provisions of an international treaty commonly called the Warsaw Convention, as supplemented by a contractual arrangement known as the Montreal Agreement. The Convention, formally entitled Convention for the Unification of Certain Rules Relating to International Transportation by Air, was concluded at Warsaw, Poland, on October 12, 1929, and adhered to by the United States on June 27, 1934 by Presidential proclamation. It is drawn up in French ² and printed in French in the United States Statutes at Large (49 U.S.Stat. 3000--3009) together with an English translation (49 U.S.Stat. 3014--3023). It is a major multilateral agreement governing the rights and responsibilities of passengers, shippers and carriers in certain aspects of international air transportation among its more than one hundred contracting Nations.

The primary objectives of the Convention are to establish uniform rules of documentation in air transportation (tickets, baggage checks and waybills) and to limit the liability of the air carriers in case of accident (Block v. Compagnie Nationale Air France, 5 Cir., 386 F.2d 323, 327, cert. den. 392 U.S. 905, 88 S.Ct. 2053, 20 L.Ed.2d 1363). The liability of air carriers for damage to passengers--the determination of which is the center of this controversy--is provided in article 17 in English translation as follows: ³ '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 ⁴ 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 U.S.Stat. 3018.) (Emphasis added; footnote added.)

The Convention then prescribes certain defenses available to the carrier and sets maximum liability per passenger at 125,000 Poincare francs ($8,291.87). The United States' dissatisfaction with this low liability limit led it on November 15, 1965 to give formal six-month notice of denunciation of the Convention. This notice, in turn, prompted a conference in Montreal, attended by delegates from 59 Nations and representatives of airline industry groups. An interim arrangement known as the Montreal Agreement (Agreement C.A.B. 18900, Civil Aeronautics Board Order Approving Agreement, May 13, 1966, 31 Federal Register 7302) emerged from this conference by which the majority of international air carriers, including the defendant, agreed to increase their liability limit per passenger to $75,000 inclusive of legal fees and to waive any defense under subdivision (1) of article 20 of the Convention. ⁵ By the waiver, the participating carriers agreed to accept the liability imposed upon them by article 17 of the Warsaw Convention without fault. Thus, as the parties agree, the Montreal Agreement modifies the effect of the Warsaw Convention only to the extent of providing for absolute liability up to $75,000; it does not change the substance of that liability--i.e., the character of the compensable injuries--as it is provided in article 17 of the Convention. ⁶

Defendant claims that the liability scheme of Warsaw and Montreal does not allow recovery for the injuries plaintiffs allege because (1) injury resulting from psychic trauma alone, with or without palpable physical manifestation, is not 'bodily injury' within the meaning of article 17, and (2) the physical injuries claimed did not result from any impact and in any case are so slight as not to amount to compensable 'bodily injury'.

I

The dispositions below of plaintiffs' motions for summary judgment give rise to the preliminary question posed on these appeals--whether a material issue of fact requiring trial has been presented. In both the Rosman and Herman actions, Special Term concluded that no triable issue was presented, granted summary judgment to plaintiffs on the issue of liability for both physical injuries and psychic trauma and directed trial on the issue of damages. The Appellate Divisions, First Department, 40 A.D.2d 963, 338 N.Y.S.2d 664 (in the Rosman action) and Second Department, 40 A.D.2d 850, 337 N.Y.S.2d 827 (Herman action), reversed and denied summary judgment, finding that they could not take judicial notice of the meaning of a foreign language and that triable issues of fact were presented as to the 'precise meaning' of the French text of article 17. We disagree.

At issue in these cases is the proper meaning to be ascribed to the liability provisions of the Warsaw Convention, a treaty of the United States. While the treaty is written in French, it is nevertheless a domestic, not a foreign law. It is the supreme law of the land (U.S.Const., art. VI, cl. 2) of which New York courts are required to take judicial notice (CPLR 4511, subd. (a) Consol.Laws, c. 8). The 'precise meaning' of the terms of the Convention, therefore, is to be determined by the court as a question of law (CPLR 4511, subd. (c))...