Tseng v. El Al Israel Airlines, Ltd.
| Decision Date | 16 September 1997 |
| Docket Number | 857,Nos. 331,D,s. 331 |
| Citation | 122 F.3d 99 |
| Parties | 147 A.L.R. Fed. 783, 65 USLW 2817 Tsui Yuan TSENG, Plaintiff-Appellant-Cross-Appellee, v. EL AL ISRAEL AIRLINES, LTD., Defendant-Appellee-Cross-Appellant. ockets 96-7447, 96-7619. |
| Court | U.S. Court of Appeals — Second Circuit |
Robert H. Silk, New York City (Silk, Bunks & Suckle, P.C., New York City, of counsel), for Plaintiff-Appellant.
Diane Westwood Wilson, New York City (Debra A. Shields, Condon & Forsyth, New York City, of counsel), for Defendant-Appellee.
Before: NEWMAN, Chief Judge, CARDAMONE and ALTIMARI, Circuit Judges.
We have two issues to resolve on this appeal. One relates to the meaning of the term "accident" under Article 17 of the Warsaw Convention. The second, and by far more elusive, is whether a plaintiff denied a remedy for alleged injuries under the Convention because it does not apply may then pursue a claim for the same injuries in state court. The Supreme Court has not answered this question, and our search for the correct answer is somewhat reminiscent of Sir Galahad's search for the "Holy Grail." But unlike that Crusader who, pressing on, left the plain and climbed the height, 1 we must toil in the valley, examining the Convention's language, its drafting history, decisional law and the thoughts of scholarly commentators.
Plaintiff Tsui Yuan Tseng (plaintiff or appellant) appeals from a judgment entered in the United States District Court for the Southern District of New York (Stanton, J.) that awarded her $1,034.90 for damages against defendant El Al Israel Airlines, Ltd. (El Al) for loss of her baggage, but dismissed her personal injury claim against the same defendant for failure to establish a cognizable injury.
Tseng alleged that El Al caused her to suffer personal injuries when it subjected her to a security search prior to her boarding an El Al flight from New York to Tel Aviv, Israel, and that the airline damaged and/or lost some of her personal belongings while searching her luggage. The district court ruled that the carrier's conduct constituted an "accident," giving rise to liability under Article 17 of the Warsaw Convention, 2 but that Tseng was barred from recovery because the only injuries she alleged were psychological and emotional, not physical.
Tseng, a New York resident employed by Beth Israel Medical Center, went on May 22 1993 to John F. Kennedy International Airport in New York where she was scheduled to take El Al Flight LY-008 to Tel Aviv. Upon arrival, she proceeded to El Al's terminal, presented her ticket and U.S. passport to an El Al security guard, entered the terminal building and proceeded to a security area, where she was asked routine questions regarding her destination. Based upon her responses, which the security guard considered illogical--no explanation of why they were considered so is in the record--Tseng was classified as a "high risk" passenger.
Pursuant to the airline's security procedures, plaintiff was taken to a private room where she was subjected to a security search for explosives or detonating devices. The term "security search" refers to an intrusive search of a passenger's body initiated after a routine check by metal detector and questioning have led airline personnel to deem a passenger a security risk. Tseng was told to remove her shoes, jacket and sweater, and then instructed to lower her blue jeans to mid-hip level. A female security guard proceeded to search Tseng's entire body manually, including her breasts and groin area. The search, conducted outside Tseng's clothing, lasted 15 minutes. Security guards also searched Tseng's baggage. The security search of Tseng and her baggage conformed to El Al procedures, which had been adopted pursuant to Federal Aviation Administration regulations.
Following the search, El Al decided that Tseng did not present a security risk after all and she was permitted to board her flight. Plaintiff testified that, as a result of defendant's search, she "was really sick and very upset" during the course of the flight, and "emotionally traumatized and disturbed" throughout her month-long trip to Israel and thereafter. Subsequently, she underwent medical and psychiatric treatment; but, at no time did Tseng claim she suffered any physical injury as a result of the bodily search.
During the flight plaintiff was unable to locate several personal items she had in her carry-on bag, and, upon arriving in Tel Aviv, she was missing, among other things, $1000 in cash and a diamond Rolex watch. Tseng did not inquire about the lost items during her flight or upon landing in Tel Aviv. However, while at the Tel Aviv airport she did inquire about her camera, which had been confiscated at JFK to be X-rayed. When plaintiff arrived at her hotel, she telephoned the airline's Tel Aviv office to inquire about the camera and the other missing items. She testified that an El Al representative informed her that she must take care of the matter in New York, and that the airline was "not interested in [her] missing items." On July 1, 1993, having returned from her trip, Tseng provided written notice to El Al's New York office that several items that accompanied her to the El Al Terminal for departure on her trip were either missing or damaged.
Since she did not obtain a satisfactory response, plaintiff initiated the action giving rise to this appeal by filing a complaint in May 1994 in the New York State Supreme Court for New York County. The complaint alleged a state law personal injury claim arising from the assault and false imprisonment; it also asserted a property claim relating to her lost and/or damaged property. El Al removed the case to federal court pursuant to 28 U.S.C. § 1441(d), because El Al is a "foreign state" within the meaning of 28 U.S.C. § 1603(a), which provides that "[a] 'foreign state' ... includes a political subdivision of a foreign state or an agency or instrumentality of a foreign state."
In federal court, El Al argued that plaintiff's action was governed by the Warsaw Convention. The district court agreed, ruling it applicable because the airline's search of plaintiff constituted an "accident" within the meaning of Article 17. In applying the Convention, the trial court found the carrier liable under Article 18 for the loss and damage to Tseng's carry-on and checked baggage, and awarded her $1,034.90. The property loss award was calculated under Articles 22(2) and (3) of the Convention, which limit recovery for checked baggage to 250 francs per kilogram of baggage, and limit recovery for carry-on baggage to 5000 francs per person. These amounts have been converted to $20 per kilogram, or $9.07 per pound, for checked baggage and $400 per passenger for carry-on luggage. See 14 C.F.R. § 221.176(a); Warsaw Convention Liability Limitations, 39 Fed.Reg. 1526 (1974). Because the weight of Tseng's baggage could not be determined, the district court used the maximum weight allowed by El Al for checked baggage--70 pounds--to make its calculation. Tseng's personal injury claim was dismissed because she failed to show a physical injury as required by Article 17.
Plaintiff appeals the dismissal of her personal injury claim and El Al cross-appeals from the property damage award. We affirm, in part, and reverse, in part, and remand to the district court for further proceedings.
We are presented with two issues of considerable import. First, we must determine whether the security search of a passenger initially suspected of presenting a possible risk of terrorism but who is later determined not to present a danger constitutes an "accident" within the meaning of Article 17 of the Warsaw Convention. Second, if the answer to the first question is "no," we must then determine whether the Convention provides the exclusive avenue for recovery of injuries sustained during international air travel even in cases where the terms of the Convention do not apply and it does not therefore subject the carrier to liability for damages.
Because there are a number of decisions setting forth the basic structure of the Convention--a comprehensive overview of it is set forth in In re Air Disaster at Lockerbie, Scotland, 928 F.2d 1267, 1270-71 (2d Cir.1991) [Lockerbie I ]--we discuss it only insofar as necessary to the resolution of the issues before us.
Tseng maintains it was error to dismiss her personal injury claims for want of a cognizable injury. The district court ruled that a security search of a passenger based upon suspicion of circumstances that turned out not to involve any danger constitutes an accident, subjecting the carrier to liability under Article 17. Carrier liability for personal injuries sustained by passengers engaged in international air travel is governed by Article 17 of the Convention, which 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.
Article 17 applies where (1) an accident has occurred, in which (2) a passenger suffered death, wounding, or any other bodily injury, and (3) the accident occurred either on board the aircraft or in the course of embarking or disembarking from the plane. See Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 535-36, 111 S.Ct. 1489, 1493-94, 113 L.Ed.2d 569 (1991). All three of these requirements must be met to invoke Article 17 liability. If a passenger satisfies the requirements for Article 17 liability, the amount of that liability was once limited to $75,000, see In re Air Disaster at Lockerbie Scotland, 37 F.3d 804, 812 (2d Cir.1994), but 77 international carriers recently agreed to...
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