Velasquez v. Aerovias Nacionales de Colombia
| Decision Date | 29 October 1990 |
| Docket Number | 90-1565-CIV.,No. 90-1564-CIV,90-1564-CIV |
| Parties | Luis Fernando VELASQUEZ, as Personal Representative of the Estate of Maria Cecilia Velasquez, Deceased, and on behalf of Jaime Velasquez, and Guido Jesus Velasquez, Plaintiff, v. AEROVIAS NACIONALES DE COLOMBIA, S.A., Avianca Inc., and Commodore Aviation, Inc., Defendants. Luis Fernando VELASQUEZ, as Personal Representative of the Estate of Mario Velasquez, Deceased, and on behalf of Luis Fernando Velasquez, Jaime Velasquez and Guido Jesus Velasquez, Plaintiff, v. AEROVIAS NACIONALES DE COLOMBIA, S.A., Avianca Inc., and Commodore Aviation, Inc., Defendants. |
| Court | U.S. District Court — Southern District of Florida |
Kevin A. Malone, Krupnick, Campbell, Malone & Rosell, Carlos Velasquez, Montero, Finizio & Velasquez, Fort Lauderdale, Fla., for plaintiff.
Victor Diaz, Jr., Aaron S. Podhurst, Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, Fla., amicus curiae for plaintiff.
Michael K. McLemore, Kimbrell & Hamann, Miami, Fla., Michael J. Holland, Condon & Forsyth, New York City, for defendants.
These actions arise out of a tragic airplane accident which occurred in Cove Neck, New York, on January 25, 1990.1 As a result of this unfortunate event, the Court is presented with its first opportunity to consider whether the Warsaw Convention, 49 Stat. 3000, reprinted at 49 U.S. C.App. 1502 (1976)2 provides the exclusive cause of action for the victims of an international air disaster. Having exhaustively reviewed the record and applicable legal authority, as well as having conducted a hearing on this matter, the Court now renders the following memorandum opinion.3
On January 25, 1990, Avianca Flight 52 departed from Medellin, Colombia.4 Shortly before its scheduled arrival at John F. Kennedy Airport, Flight 52 crashed in Cove Neck, New York, at approximately 9:30 p.m. As a result of this air disaster, sixty-five passengers were killed and eighty-four passengers were severely injured. As is often the case in accidents of this magnitude, a vast amount of litigation has been initiated in multiple jurisdictions.
As of the date of this Order, forty-three death and personal injury actions have been filed against the defendants Aerovias Nacionales De Colombia, S.A., Avianca Incorporated, and Commodore Aviation Incorporated (collectively "AVIANCA"). Of these pending actions, five were filed in the Circuit Court in and for Dade County, Florida.5 The two actions under present consideration were filed by Luis Fernando Velasquez, the personal representative of the estates of Maria Cecilia Velasquez and Mario Velasquez. Velasquez has grounded each of these actions strictly in terms of Florida's Wrongful Death Act. See, Florida Statute, sections 768.16-768.27. In each of the complaints, Velasquez has carefully avoided making the slightest reference to a federal cause of action.
Shortly after these actions were commenced in state court, Avianca sought removal pursuant to 28 U.S.C. 1441, to the United States District Court for the Southern District of Florida. The following represents a compilation of the actions sought to be removed:
In essence, Avianca asserts that these actions are properly removed to federal court as a result of the exclusivity of the Warsaw Convention — that is, the Warsaw Convention provides the sole cause of action under which the victim of an international air disaster may proceed. Conversely, the plaintiffs allege that the Warsaw Convention merely provides the exclusive remedy for such victims — that is, it does not prescribe the exclusive cause of action.7 Fully cognizant of the depth of emotion that such tragedies naturally invoke, we now proceed to consider the legal basis of plaintiff's motion for remand.
The actions under consideration present difficult questions regarding interpretation of the Warsaw Convention. These questions have come to fruition as a result of Avianca seeking removal of these actions to federal court pursuant to 28 U.S.C. section 1441.8 To properly address the questions that have arisen, it is essential that the Court consider, at the outset, the history and intent behind the Warsaw Convention.
The Warsaw Convention is an international treaty to which both Colombia and the United States are signatories. In fact, most of the major countries of the world whose airlines have international routes have chosen to adhere to the terms of this treaty. See, Lee S. Kreindler, 1 Aviation Accident Law section 11.013 at 11-7 (1988) (); Lawrence B. Goldhirsch, The Warsaw Convention Annotated: A Legal Handbook, (1988); In re Aircrash In Bali, Indonesia On April 22, 1974, 684 F.2d 1301 (9th Cir.1982). The Warsaw Convention was the result of two international conferences held in Paris, France in 1925 and Warsaw, Poland in 1929. The United States declined an invitation to participate in the drafting of the Convention. However, the United States did appoint two representatives, John Ide and McCeney Werlich, to observe the proceedings. Following ratification by several countries, the United States eventually pronounced its adherence to the Warsaw Convention in 1934. On June 15, 1934, the Senate approved the Convention by voice vote. 78 Cong.Rec. 11,582 (1934); see, Lowenfeld and Mendelsohn, 80 Harv.L. Rev. at 502.
From the outset, the Warsaw Convention provoked a great deal of debate and dissatisfaction among the majority of signatory countries, including the United States. See, Lowenfeld and Mendelsohn, 80 Harv. L.Rev. at 502. Especially bothersome was the limitation on liability set forth in Article 22 of the Convention. In an effort to eradicate this dissatisfaction, the signatories to the Convention met at the Hague in 1955. This meeting, known as the Hague Protocol, had the effect of increasing the limitation of liability to approximately $16,600 in American currency.9 Hague Protocol Art. XI, reprinted in Andreas F. Lowenfeld, Aviation Law Documents Supp. 958-59 (2d Ed.1981). Eleven years later the Montreal Agreement was enacted.10 This Agreement increased the limitation on liability to $75,000 in American currency. Since the time of Montreal, additional international conferences have been convened in an attempt to revise the terms of the Warsaw Convention. However, the United States has chosen to abide by the Warsaw Convention, as modified by the Montreal Agreement. See, Floyd v. Eastern Airlines, Inc., 872 F.2d 1462, 1469 (11th Cir. 1989); Stuart M. Speiser and Charles F. Krause, 1 Aviation Tort Law section 11.20 at 680-83 (1978 and 1988 Supp.).
At the time the Warsaw Convention was convened in October 1929, commercial air travel was in its infancy.11 In fact, Charles Lindberg had flown "The Spirit of St. Louis" across the Atlantic Ocean only two years before in 1927. The sole international airliner conducting business in the United States at that time operated flights between Havana, Cuba and Key West, Florida. Block v. Compagnie Nationale Air France, 386 F.2d 323 (5th Cir.1967); Wright, "The Warsaw Convention's Damage Limitations," 1957 Clev.Mar.L.Rev. 290-91. Although commercial air travel was just a burgeoning industry at this time, "common rules to regulate international air carriage had become a necessity." Floyd v. Eastern Airlines, Inc., 872 F.2d 1462 (11th Cir.1989); Minutes, "Second International Conference on Private Aeronautical Law," October 4-12, 1929, Warsaw 13 (English translation by Robert C. Horner and Didier Legrez 1975) ("Minutes") (address of Mr. Lutostanski, head of the Polish delegation). As a result of such necessity, the Warsaw Convention was adopted.
Courts and commentators alike are in agreement that the Warsaw Convention had two primary objectives. The first objective was to place a limitation on the potential liability of the airliners in the event of accidents and lost or damaged goods. Minutes, at 37; Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 104 S.Ct. 1776, 80 L.Ed.2d 273 (1984); Andreas F. Lowenfeld and Allan I. Mendelsohn, "The United States and the Warsaw Convention," 80 Harv.L.Rev. 497, 498-99 (1967) ("Lowenfeld and Mendelsohn"). The second objective was to establish a uniform system for handling claims arising out of international air transportation. Minutes, at 85, 87. The case authority discussing the delegates' desire to achieve such uniformity is abundant.12
The delegates' desire to establish an exclusive and uniform liability system in the context of international air travel is vividly illustrated by the following statements:
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Pan American Corp., In re
...929 F.2d 599 (11th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 376, 116 L.Ed.2d 327 (1991). But see Velasquez v. Aerovias Nacionales de Colombia, 747 F.Supp. 670, 676-77 (S.D.Fla.1990) ("Warsaw Convention creates the exclusive cause of action in wrongful death cases"); cf. St. Paul Ins. C......
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Jack v. Trans World Airlines, Inc.
...cert. denied and appeal dismissed, 469 U.S. 1186, 105 S.Ct. 951, 83 L.Ed.2d 959 (1985) (same); Velasquez v. Aerovias Nacionales de Colombia, S.A., 747 F.Supp. 670, 675-77 (S.D.Fla.1990) The official and governing text of the treaty, however, is in French, and it is that text which "must gui......
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Campos v. Sociedad Aeronautica De Medellin Cons., SA, 94-1030-CIV.
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