AIR FRANCE, PETITIONER V. VALERIE HERMIEN SAKS No. 83-1785 In the Supreme Court of the United States October Term, 1984 On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Brief for the United States as Amicus Curiae Supporting Reversal TABLE OF CONTENTS QUESTION PRESENTED Statement Summary of argument Argument: The Warsaw Convention does not establish carrier liability for an injury caused by the normal operation of an aircraft A. An "accident" giving rise to carrier liability under Article 17 of the Warsaw Convention must involve some unusual or unexpected happening B. The Montreal Agreement did not alter the threshold requirement of Article 17 that an "accident" cause the injury C. The subsequent history of proposals to amend the Warsaw Convention confirms that Article 17 does not establish liability for injuries caused by the routine operation of an aircraft Conclusion QUESTION PRESENTED Whether an international air carrier is liable under the Warsaw Convention and the Montreal Agreement for an injury or illness sustained by a passenger as a result of normal and anticipated cabin pressure changes. On October 1, 1984, the Court invited the Solicitor General to file a brief expressing the views of the United States in this case. STATEMENT 1. The Warsaw Convention, /1/ adopted in 1929, is a multilateral private law treaty ratified by the United States and currently adhered to by over 120 nations. See Trans World Airlines, Inc. v. Franklin Mint Corp., No. 82-1186 (Apr. 17, 1984), slip op. 3. The Convention establishes internationally uniform rules governing the air carriage of passengers, cargo, and baggage. Article 17 of the Convention provides that "(t)he 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" during the course of international travel (Pet App. 20a). Article 22 limits "the liability of the carrier for each passenger * * * to the sum of 125,000 francs" (id. at 21a). /2/ Article 20(1) provides that the carrier may avoid the liability attaching under Article 17 upon "prov(ing) that he and his agents (took) all necessary measures to avoid the damage or that it was impossible for him or them to take such measures" (ibid.). This provision, commonly referred to as the "due care defense," effectively shifts the burden of proof of negligence from the injured passenger to the carrier. Article 21 permits the carrier to avoid liability under the Convention upon proof that "the damage was caused by or contributed to by the negligence of the injured person" (ibid.) Article 25 precludes the carrier from invoking the liability limits set by Article 22 "if the damage is caused by his wilful misconduct" (id. at 23a). In the years following its ratification of the Convention, the United States grew increasingly dissatisfied with the low level of the liability limits established by the treaty. See Lowenfeld & Mendelsohn, The United States and the Warsaw Convention, 80 Harv. L. Rev. 497, 504-507 (1967). On November 15, 1965, this dissatisfaction with the liability limits led the United States to issue a notice of its intent to denounce the Convention effective in six months, pursuant to Article 39 of the Convention. /3/ At the same time, the United States made know that it was prepared to withdraw the notice of denunciation if the contracting nations would agree to increase the liability limits to approximately $100,000. See S. Exec. Rep. 97-45, 97th Cong., 1st Sess. 2 (1981); Warshaw v. Trans World Airlines, Inc. 442 F. Supp. 400, 406 (E.D. Pa. 1977). A diplomatic conference was convened in Montreal in 1966 in an effort to resolve the issue, but it proved unsuccessful. On the eve of the planned denunciation, a compromise measure was proposed by the members of the International Air Transport Association (IATA) (in consultation with representatives of the United States government). This Agreement, known as the Montreal Agreement of 1966 (Agreement CAB 18900, set forth at Pet. App. 24a-26a) ), was approved by the Civil Aeronautics Board (CAB) on May 13, 1966 (see 31 Fed. Reg. 7302, set forth at Pet. App. 27a-31a), and the United States withdrew its proposed denunciation of the Convention in light of the Agreement. See generally Lowenfeld & Mendelsohn, supra, 80 Harv. L. Rev. at 586-596. /4/ Under the Montreal Agreement, virtually all air carriers conducting international flights into or out of the United States agreed to include in their tariffs a special contract pursuant to which the liability limit for death or bodily injury would be raised voluntarily to $75,000 inclusive of legal fees and costs (or $58,000 exclusive of legal fees and costs) for each passenger. /5/ The carriers further agreed to provide in their tariffs that they would waive their right to assert the due care defense provided by Article 20(1) of the Convention. The Montreal Agreement did not, however, waive the carriers' right under Article 21 of the Convention to avoid or reduce liability by proving that the passenger was contributorily negligent. The Agreement also made clear that passengers still retained their right to obtain recovery in excess of the Convention's liability limits where the death or injury was attributable to the carrier's wilful misconduct. See generally 31 Fed. Reg. 7302 (1966). /6/ 2. Respondent was a passenger on a flight operated by petitioner from Paris to Los Angeles on November 16, 1980. During the flight, she suffered a permanent, total hearing loss in her left ear that allegedly resulted from cabin pressure changes during the landing. Respondent filed suit in the United States District Court for the Northern District of California seeking damages for the hearing loss. Pet. App. 16a. The parties agreed that "at all times during the descent the cabin pressurization system of the aircraft operated normally" (ibid.; see J.A. 29-30). Thus, in the words of the district court, "(t)he sole question presented * * * (was) whether a loss of hearing proximately caused by normal operation of the aircraft's pressurization system is an 'accident' within the meaning of Article 17 of the Warsaw Convention," hence providing a bsis for recovery under the Convention. Id. at 16a-17a. /7/ The district court granted petitioner's motion for summary judgment (Pet. App. 16a-18a). Relying on DeMarines v. KLM Royal Dutch Airlines, 580 F.2d 1193 (3d Cir. 1978), the court held that an ear injury caused by normal cabin pressurization changes was not an "accident" within the meaning of Article 17 of the Convention. Rather, the court concluded that the term "contemplates some unusual event precipitating injury" as a predicate to recovery under the Convention (Pet. App. 17a). A divided court of appeals reversed (Pet. App. 1a-16a). The court of appeals agreed with the district court that "(a) finding that an 'accident' has occurred is essential to invoking the provisions of Article 17" (id. at 3a). The court reasoned, however, that the existence of an "accident" should be "viewed from the perspective of the person experiencing the injury" (ibid.). Looking to the definition of "aircraft accident" contained in 49 C.F.R. 830.2, the court of appeals determined that the term could encompass any death or injury suffered in an "'occurrence associated with the operation of an aircraft'" (Pet. App. 3a-4a). The court also found that this expansive definition was consistent with the intent of the framers of the Montreal Agreement. The court explained that permitting a carrier to avoid liability on the basis that the injury resulted from normal carrier operation and hence was not caused by an accident "is, in essence, a restatement of the defense of due care" that the carriers have now waived under the Montreal Agreement (id. at 4a). Rather, the court held, the Montreal Agreement must be construed as establishing a regime of absolute liability under which the plaintiff need show only that his injury was caused by the operation of the aircraft (id. at 7a-10a). Judge Wallace dissented (Pet. App. 11a-16a). He observed that Article 17 specifically requires an "accident" as a predicate to recovery under the Convention, in sharp contrast to Article 18, which provides for recovery for damage to cargo or baggage on the basis of an "occurrence which caused the damage" (Pet. App. 11a (emphasis added) ). Judge Wallace agreed with the view expressed by the Third Circuit in DeMarines, 580 F.2d at 1197-1198, that recovery under Article 17 requires a demonstration that a passenger's death or injury "was the result of some 'unusual or unexpected happening'" (Pet. App. 12a). Judge Wallace specifically disputed the majority's statement that this approach was inconsistent with the elimination of the due care defense by the Montreal Agreement, explaining that the requirement of an "accident" under the Convention "has nothing to do with negligence or the lack of it" (ibid.). SUMMARY OF ARGUMENT A. Article 17 of the Warsaw Convention imposes liability on an air carrier when a passenger suffers death or bodily injury caused by an "accident" on board the aircraft. The courts that have construed the term "accident," orther than the court below, have correctly held that it connotes some unusual or unexpected event. See, e.g., DeMarines v. KLM Royal Dutch Airlines, 580 F.2d 1193, 1196-1197 (3d Cir. 1978). Because respondent's hearing loss was the result of normal and routine changes in cabin air pressure, her injury was not the result of an "accident" and she was not entitled to compensation under the Convention. The fact that respondent's hearing loss itself was unexpected plainly does not satisfy the terms of the Convention because there was no accident that "cause(d) the damage." And the text of the Convention refutes the court of appeals' suggestion that the term "accident" has no special meaning and should be treated as synonymous with "occurrence"; Article 18 defines carrier liability for damaged baggage in terms of an "occurrence," thus establishing a looser standard for liability than in the case ob bodily injury and making clear that the two words embody distinct concepts. Moreover, construing the term "accident" in Article 17 to require that the injury be caused by an unexpected event is fully consistent with the overall structure of the Warsaw Convention, which makes liability turn on the negligence of the carrier, either proven or presumed. By contrast, the court of appeals' creative interpretation makes the carrier liable for every injury suffered on board an aircraft. This no-fault liability regime cannot be squared with the Convention as a whole or the intention of the drafters. B. The entry of the Montreal Agreement in 1966 did not create liability for injury suffered on a routine flight. The Agreement did not alter the terms of the Warsaw Convention; it was simply a contractual arrangement in which carriers agreed to waive two specific rights: (1) the liability limits of the Convention (up to $75,000); and (2) the due care defense of Article 20(1). The carriers did not waive the "accident" requirement of Article 17. The court of appeals plainly erred in reaching beyond the specifics of the Montreal Agreement to find that it was generally intended to create a scheme of no-fault liability. Although the Agreement did facilitate recovery in some cases in the absence of negligence by eliminating the carriers' right to rebut the Convention's presumption of negligence, it plainly did not contemplate guaranteed recovery for every injury suffered during an international flight. For example, the Agreement preserved the contributory negligence defense of the Convention. The Montreal Agreement was designed to increase the level of recoveries for injuries covered by the Convention and to provide prompt resolution of claims. These purposes were advanced by the elimination of the due care defense, but they have no application where the injury occurs on a routine flight and the liability regime of the Convention is not triggered at all. Neither the signatories nor the United States government, which helped to develop the Montreal Agreement, intended that the Agreement establish a health insurance system for every injury occuring on board an aircraft. C. The subsequent actions of the Warsaw Convention signatories at the Guatemala City Conference in 1971 confirm that the term "accident" in Article 17 requires that an unexpected happening cause the injury. The Protocol adopted in Guatemala City (but not yet in force) amends Article 17 to refer to an "event" rather than an "accident." The delegates universally recognized this change as an expansion of the scope of liability provided under the original Convention, and their discussions of the issue reflected their understanding that the term "accident" connotes some unexpected event. ARGUMENT THE WARSAW CONVENTION DOES NOT ESTABLISH CARRIER LIABILITY FOR AN INJURY CAUSED BY THE NORMAL OPERATION OF AN AIRCRAFT The court of appeals held in this case that an air carrier is liable for an injury suffered by a passenger during a routine international flight -- here, for a hearing loss caused by the normal, expected cabin pressure changes made in preparation for landing. This holding rested on the conclusion that the Warsaw Convention, together with the Montreal Agreement, impose on air carriers a regime of complete no-fault liability (see Pet. App. 7a-12a). This conclusion is manifestly erroneous. It is quite clear that the Convention does not establish such no-fault liability, and its requirement that the injury result from an "accident" does not permit recovery when no unexpected event occurs. The Montreal Agreement, while it waives as a matter of contract certain specified carrier defenses provided by the Convention and thus permits recovery in some cases where the carrier is not negligent, does not alter the threshold prerequisite to recovery that an "accident" cause the injury. A. An "Accident" Giving Rise To Carrier Liability Under Article 17 Of The Warsaw Convention Must Involve Some Unusual Or Unexpected Happening As with a statute, the plain language of the treaty itself is the primary source for resolving questions of interpretation that arise under it. Maximov v. United States, 373 U.S. 49, 54 (1963). Article 17 of the Convention, the article that establishes prima facie liability for death or bodily injury suffered by a passenger, provides that a carrier is liable for damages "if the accident which caused the damage so sustained took place on board the aircraft * * *." Clearly, there can be no recovery under the Convention unless the injury is caused by an "accident" that occurs in connection with the flight. In common usage, the word "accident" connotes an unusual or unanticipated event. See, e.g., Landress v. Phoenix Mutual Life Insurance Co., 291 U.S. 491, 496 (1934); Ketona Chemical Corp. v. Globe Indemnity Co., 404 F.2d 181, 185 (5th Cir. 1969); Koehring Co. v. American Automobile Insurance Co., 353 F.2d 993, 996 (7th Cir. 1965). A routine flight in which the operation of the aircraft is normal in every respect would not ordinarily be considered one in which an airplane "accident" occurred, and thus Ariticle 17 should not be construed to establish carrier liability when a passenger suffers injury on such a flight because of his own unique state of health. See DeMarines v. KLM Royal Dutch Airlines, 580 F.2d 1193, 1196-1197 (3d Cir. 1978); MacDonald v. Air Canada, 439 F.2d 1402, 1403-1404 (1st Cir. 1971); Warshaw v. Trans World Airlines, Inc., 442 F. Supp. 400, 410 (E.D. Pa. 1977). The court of appeals acknowledged that "(a) finding that an 'accident' has occurred is essential to invoiking the provisions of Article 17" (Pet. App. 3a). The court remarked, however, that whether an "accident" has occurred should be "viewed from the perspective of the person experiencing the injury" (ibid.); because respondent's hearing loss was unexpected, the court apparently concluded that it should be deemed caused by an "accident." This approach is fatally flawed because it simply searches for an "accident" in the abstract -- finding it here in the injury itself -- and ignores the text of Article 17. The Warsaw Convention plainly contemplates that the "accident" occur in the flight itself or the activities associated with the flight, because Article 17 refers to an accident that causes the injury. Terming the hearing loss itself an "accident" that caused the injury. In short, the plain terms of Article 17 do not permit the question of liability to turn on whether an "accident" has occurred from the perspective of the person experiencing the injury. /8/ The court of appeals also supported its statutory interpretation by looking beyond the common understanding of accident to the particular definition of "aircraft accident" set forth in 49 C.F.R. 830.2. That regulation defines the term as "an occurrence associated with the operation of the aircraft * * * in which any person suffers death or serious injury * * *." As Judge Wallace noted in dissent (Pet. App. 11a-12a), however, this definition is for purposes of National Transportation Safety Board (NTSB) reporting requirements; it has no discernible bearing on what meaning the framers of the Warsaw Convention intended for the term. Indeed, the conclusion drawn by the court of appeals from the NTSB definition -- that "accident" in Article 17 simply means "occurrence" (see Pet. App. 3a-4a) -- is refuted by the text of the Warsaw Convention itself. Article 18 of the Convention prescribes carrier liability for lost or damaged baggage "if the occurrence which caused the damage so sustained took place during the transportation by air" (see Pet. App. 20a). Given the general similarity in language between Articles 17 and 18, it is almost inconceivable that the framers of the Convention did not intend the words "accident" and "occurrence" to embody distinct concepts. See Fedorenko v. United States, 449 U.S. 490, 512-513 (1981). Indeed, a committee of the International Civil Aviation Organization (ICAO) has flatly stated that the standard governing carrier liability for damaged or lost cargo and baggage "is much looser as a result of the fact that the Convention requires only an Occurence (sic) instead of an 'accident' * * *." International Civil Aviation Organization, 1 Report of the Subcommittee on Revision of the Warsaw Convention as Amended by the Hague Convention, reprinted in ICAO Doc. 8839-LC/158-1 at 231, Paragraph 8 (Sept. 2-19, 1969) (emphasis in original). Accordingly, the text of the Convention strongly indicates that Article 17 establishes liability for death or bodily injury to a passenger only if an unexpected event causes the injury, not if the injury, because of the state of the passenger's health, is occasioned by routine international travel. Moreover, the interpretation of the court below is out of harmony with the basic framework of the Warsaw Convention. The liability regime of the Convention is a fault-based one, clearly not one of strict liability. Article 17 does create a prima facie case of carrier liability when an accident causes injury to a passenger. But Article 20(1) specifies that the carrier may avoid liability entirely by proving that it exercised due care in conducting its operations. And Article 21 permits the carrier to avoid liability by demonstrating that the injured passenger was contributorily negligent. Thus, the Convention effectively establishes a presumption that the carrier is responsible for the accident that causes the passenger's injury -- analogous to the initial inference or presumption of negligence created by the doctrine of res ipsa loquitur -- but it is a presumption that may be rebutted by a showing of due care or contributory negligence. In short, the Warsaw Convention liability regime was designed basically as a burden-shifting scheme under which liability remains based on the "negligence of the carrier," either proven or presumed. See Calkins, The Cause of Action Under the Warsaw Convention, 26 J. of Air L. & Com. 217, 236 (1959); see generally Lowenfeld & Mendelsohn, supra, 80 Harv. L. Rev. at 558-559. It deviates from standard tort law in the shifting of the burden of proof of due care to the carrier, thus relieving the plaintiff of the need to prove negligence, but it plainly does not create a regime of strict liability. Against this background of a system based on negligence and fault, there is no reason to believe that the framers of the Convention intended the term "accident" in Article 17, contrary to its common meaning, to establish carrier liability for all harms incurred by passengers incident to air travel. The creative reading adopted by the court of appeals simply fails to give the treaty "a fair interpretation, according to the intention of the contracting parties, and so as to carry out their manifest purposes." Wright v. Henkel, 190 U.S. 40, 57-58 (1903). B. The Montreal Agreement Did Not Alter The Threshold Requirement Of Article 17 That An "Accident" Cause The Injury The court of appeals recognized that the Warsaw Convention "established a fault-based system for carrier liability (Pet. App. 5a), but the court concluded that the Montreal Agreement converted that system into one of no-fault liability that permits recovery for an injury caused by the routine operation of an aircraft. This analysis completely misperceives the scope of the Montreal Agreement, expanding it well beyond the bounds intended by its signatories. The Warsaw Convention is a treaty of the United States and thus represents the supreme law of the land. See, e.g., United States v. Pink, 315 U.S. 203 (1942). The Montreal Agreement is merely a contractual agreement among carriers; it is "not a treaty, did not amend the terms of the Warsaw Convention multilaterally, and was not required to be, nor was in fact ratified by the United States Senate." Warshaw v. Trans World Airlines, Inc., 442 F. Supp. at 408. While the carriers could and did waive in the Montreal Agreement some of their rights conferred by the Convention, they could not alter the terms of the treaty itself; that is exclusively the province of the sovereign nations that are parties to the treaty. /9/ Therefore, it is essential to examine the precise terms of the Montreal Agreement in order to assess its relevance to this case. In the Agreement (Pet. App. 24a-26a), for international flights with a stopping or take-off point in the United States, the carriers agreed to waive: (1) the Convention's liability limit for death or bodily injury, extending it to $75,000, and (2) the due care defense available under Article 20(1) of the Convention (id. at 24a). That is all. The Montreal Agreement did not purport to alter the "accident" requirement of Article 17 (and, indeed, could not have done so), and the carriers did not contractually agree to accept liability in cases not covered by Article 17. Accordingly, respondent is entitled to recover here only if her injury was caused by an "accident" within the meaning of Article 17 as intended by the original drafters of the Warsaw Convention. Moreover, in addition to reaching beyond the text of the Montreal Agreement, the court of appeals plainly erred in finding that its purpose was to create a regime of complete no-fault liability. Regardless of the correct interpretation of the work "accident" in Article 17, it is undeniable that the Agreement did not waive the carrier's right to avoid or reduce liability by proving contributory negligence. Thus, the Montreal Agreement clearly contemplated that a passenger could be injured on a flight, yet not be entitled to recover from the carrier. /10/ Given this fact, it is difficult to understand why the court of appeals believed that the Montreal Agreement would be undermined in any way by giving "accident" in Article 17 its ordinary meaning and allowing a carrier to be free from liability for a passenger injury caused by the routine operation of the aircraft. The court of appeals stated that to deny recovery here -- on the basis of the "accident" requirement of Article 17 -- because the injury was a result of normal carrier operations would revive the due care defense waived in the Montreal Agreement (Pet. App. 4a). But there is no incongruity in eliminating the due care defense (and thereby permitting recovery in the absence of negligenct), while maintaining the requirement that the injury be caused by an abnormal incident of flight. The Warsaw Convention, in the event of an "accident" that injures a passenger, establishes a rebuttable presumption that the injury was due to negligence of the carrier. The Montreal Agreement eliminates the opportunity to rebut that presumption, but that does not create a no-fault insurance scheme or suggest that one is appropriate. The policies underlying the waiver of the due care defense in the Montreal Agreement were to provide prompt resolution of claims under the Convention and to reduce the litigation costs of recovery. See Lowenfeld & Mendelsohn, supra, 80 Har. L. Rev. at 600. In a case such as this one, where there was no unexpected event causing the injury that could even arguably be attributed to negligence by the carrier, the liability provisions of the Convention should not be triggered at all, and the reasons underlying the waiver of the due care defense are inapposite. Thus, permitting recovery under the Convention only in cases where the injury results from an unexpected event is fully consistent with the waiver of the due care defense in the Montreal Agreement. The court of appeals pointed to no evidence even suggesting that the framers of the Montreal Agreement intended to go beyond the abolition of the due care defense to create a right of recovery for every injury incurred in connection with an international flight. In fact, there was no such intent. In preparing this brief, the Solicitor General consulted with the Departments of State and Transportation, the two executive departments that represent the interests of the United States in negotiations involving the Warsaw Convention. These departments have informed us that the court of appeals misconstrued the intent of the Unites States government in helping to develop the Montreal Agreement; the government's objective was not to bring about a health insurance system whereby carriers would be liable for every injury caused by routine aircraft operations, but rather simply to obtain higher limits of carrier liability with a minimum of litigation (by requiring waiver of the due care defense). /11/ In particular, it was not the intent of our representatives to alter the Warsaw Convention requirement of an "accident," which means an unusual or unexpected event that caused the injury. /12/ Other courts to consider the question presented here have recognized that the Montreal Agreement should not be construed to establish carrier liability for an injury attributable to routine operation of the aircraft. In Washaw v. Trans World Airlines, Inc., supra, for example, the plaintiff suffered a hearing loss due to normal repressurization of the cabin during flight. See 442 F. Supp. at 404, 413. The district court held that the injury was not caused by an "accident" within the meaning of Article 17 because it did not result from an unexpected event, and accordingly it ruled that the carrier was not liable. Id. at 407-413. The court specifically rejected the contention that the Montreal Agreement effected a change in the existing "accident" requirement of Article 17. Id. at 408. The district court's decision in Warshaw was followed by the Third Circuit in DeMarines v. KLM Royal Dutch Airlines, supra. In that case, the plaintiff suffered a permanent loss of equilibrium ascribed to the pressurization of the aircraft. Finding no basis for concluding that there was any abnormality or unexpected occurrence in the cabin pressurization, the court of appeals held that there was no "accident" that could give rise to recovery under Ar icle 17. See also MacDonald v. Air Canada, 439 F.2d at 1403-1404. And the Third Circuit has recently adhered to its interpretation of the "accident" requirement, despite the contrary view of the court below. Abramson v. Japan Airlines Co., 739 F.2d 130, 133 (1984). The court of appeals rejected this line of cases as "out of step with the Montreal Agreement" (and other recent decisions) because they apply a "restrictive, negligence-based definition of 'accident'" (Pet. App. 10a). This mischaracterization of the Third Circuit's view as "negligence-based" simply ignores the significant difference between the requirement that the injury be caused by something other than the routine operation of the aircraft and the prior requirement -- eliminated in the Montreal Agreement -- that the injury be caused by the negligence of the carrier. The Third Circuit's interpretation of the accident requirement is fully consistent with the decisions relied on by the court below (see Pet. App. 7a-9a) that recognize liability under the Convention for extraordinary events such as terrorist attacks or hijackings. See Evangelinos v. Trans World Airlines, Inc., 550 F.2d 152 (3d Cir. 1977) (en banc); Day v. Trans World Airlines, Inc., 528 F.2d 31 (2d Cir. 1975), cert denied, 429 U.S. 890 (1976); Husserl v. Swiss Air Transport Co., 351 F. Supp. 702 (S.D.N.Y. 1972), aff'd, 485 F.2d 1240 (2d Cir. 1973). Such events are "accidents" within the meaning of Article 17 because they are abnormal and unexpected; in light of the Montreal Agreement the carrier can no longer escape liability by showing that the "accident" did not result from its negligence. The threshold requirement of "accident" in Article 17, however, remains unchanged. See Evangelinos, 550 F.2d at 154; Day, 528 F.2d at 33; Husserl, 351 F. Supp. at 706 (noting that plaintiff bears burden of proof on this issue). C. The Subsequent History Of Proposals To Amend The Warsaw Convention Confirms That Article 17 Does Not Establish Liability For Injuries Caused By The Routine Operation Of An Aircraft It is generally recognized that "treaties are construed more liberally than private agreements," and it is appropriate to "look beyond the written words" to the post-ratification conduct of the parties in ascertaining their proper meaning. Choctaw Nation of Indians v. United States, 318 U.S. 423, 431-432 (1943). See also Trans World Airlines, Inc. v. Franklin Mint Corp., No. 82-1186 (Apr. 17, 1984), slip op. 15-16; Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox, Ltd., 291 U.S. 138, 160-163 (1934). In this instance, it is the conduct of the Warsaw Convention signatories with respect to later negotiations to amend the Convention that is relevant. Article 17 was the direct focus of a series of meetings by the ICAO that led to the adoption of the Guatemala City Protocol, which amended Article 17 in significant part. See note 6, supra. These meetings and the action taken by the negotiators cast considerable light on the meaning of the term "accident" in Article 17. See generally Warshaw v. Trans World Airlines, Inc., 442 F. Supp. at 410-412. At Guatemala, the ICAO agreed after intensive deliberations to change the language of Article 17 providing for liability for passenger injury "if the accident" causing the injury occurred during the flight or associated embarking or disembarking. The Guatemala City Protocol replaced that provision with the rule that the carrier "is liable * * * upon condition only that the event which caused the death or injury" took place during the flight or associated embarking or disembarking, subject to the further proviso that "the carrier is not liable if the death or injury resulted solely from the state of health of the passenger." See. S. Exec. Rep. 98-1, 98th Cong., 1st Sess. 28 (1983) (emphasis added). The substitution of the word "event" for "accident" in the Guatemala City Protocol was universally recognized by the delegates as an expansion of the scope of the carrier's liability as it existed under the Convention. See Mankiewicz, Warsaw Convention: The 1971 Protocol of Guatemala City, 20 Am. J. Comp. L. 335, 337-338 (1972); S. Exec. Rep. 97-45, 97th Cong., 1st Sess. 35 (1981); Warshaw, 442 F. Supp. at 411-412 (and authorities cited therein). See also ICAO, Minutes of the Second Meeting of the Commission of the Whole, ICAO Doc. 9040-LC/167-1, at 31 (1972) (statement of the delegate of Mexico) (characterizing amendment as a "change in the system of liability"). If the court below were correct that the version of Article 17 contained in the original Convention already conferred carrier liability for all injuries occurring in international travel, these extensively debated substantive amendments to Article 17 would be completely superfluous. Indeed, the discussions leading to the adoption of the change in Article 17 clearly reflect the drafters' understanding that an "accident" under the original Article 17 connotes some unexpected event apart from the normal operation of the aircraft. The Italian delegate to the Commission of the Whole explained, without objection, that a proposal to reinstate the term "accident" in place of the term "event" in the latest draft amendment would make it clear that the objective liability of the carrier would be engaged only in the case of an abnormal event directly connected with air transport operations." ICAO Doc. 9040-LC/167-1, supra, at 44, Paragraph 30. /13/ The same delegate linked the concept of an "accident" to a "malfunctioning of the service." Id. at 32, Paragraph 8. The Swedish delegate, referring to the choice between the words "accident" and "event," stated that "the word 'accident' was too narrow" because the carrier might appropriately be held liable for acts that could not be considered "accidents." Id. at 34, Paragraph 17. /14/ In addition, the delegates to the Guatemala City conference discussed the scope of carrier liability under the revised version of Article 17 in connection with a fact situation analogous to the one before the Court in this case. See ICAO Doc. 9040-LC/167-1, supra at 31-50. The delegate of New Zealand posed the hypothetical of "a passenger (who) died from fright on an aircraft caught in clear air turbulence." The delegate suggested that, under the amended Article 17, which in addition to substituting "event" for "accident" provided for no liability where the death or injury "resulted solely from the state of health of the passenger," "the carrier should not be liable in those circumstances." Id. at 31, Paragraph 1. The delegate of the United Kingdom disagreed, stating that, "(w)ith regard to the example * * * of the passenger with a weak heart whose death was precipitated by clear air turbulence, his Delegation felt that the airline should carry the responsibility in border-line cases." Id. at 32, Paragraph 7. This discussion plainly indicates that the Guatemala City delegates would not have understood the unamended Warsaw Convention to establish liability in this case. The New Zealand hypothetical is closely analogous to the facts here -- a passenger, because of his unique state of health, suffers an injury because of the routine operation of the aircraft. /15/ Yet the delegates characterized this situation either as one in which there should be no liability (New Zealand) or as a "border-line case" in which there should be liability under the amended Article 17 (United Ingdom). If such a situation would present no more than a "border-line case" under the substantially expanded liability scheme adopted in Guatemala City, it is manifest that it does not give rise to liability under the original provisions of the Warsaw Convention still in effect in the United States, which explicitly require as a predicate to recovery that an "accident" cause the injury. In the absence of a voluntary agreement by the carriers to waive the "accident" requirement, a change in this liability regime requires the approval of the Executive Branch and the Senate. It cannot be made on the basis of the court of appeals' view concerning appropriate cost allocation (cf. Pet. App. 7a-8a). CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. REX E. Lee Solicitor General RICHARD K. WILLARD Acting Assistant Attorney General KENNETH S. GELLER Deputy Solicitor General ALAN I. HOROWITZ Assistant to the Solicitor General MARK H. GALLANT Attorney NOVEMBER 1984 /1/ The Convention is officially termed the Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000. The United States has been a party to the Warsaw Convention since 1934. Articles 17-25 of the Convention are set forth at Pet. App. 20a-23a. /2/ The value of the frac is determined by reference to the official price of gold. See Trans World Airlines, Inc. v. Franklin Mint Corp., supra. The Article 22 limit converted into approximately $8300 when the United States became a party to the Convention, and sine 1972 it converts into approximately $10,000. /3/ The Warsaw Convention was modified in certain respects by the Hague Protocol of 1955. The United States, however, declined to ratify the Hague Protocol because it believed that the increase in the liability limits to $16,000 for claims involving death or bodily injury was not sufficient. Lowenfeld & Mendelsohn, supra, 80 Harv. L. Rev. at 510-516, 532-546, 564. /4/ The Montreal Agreement is an intercarier agreement filed with the CAB for its approval under Sections 412 and 414 of the Federal Aviation Act, 49 U.S.C. App. 1382, 1384. CAB approval insulated the Agreement from the operation of the antitrust laws. /5/ The use of such a special contract is specifically authorized by Article 22(1) of the Convention. See Pet. App. 21a. /6/ Efforts to revise the Warsaw Convention have continued. The United States and many other nations have signed the Guatemala City Protocol of 1971 and the Montreal Protocols Nos. 3 and 4 of 1975, but neither of these amended versions of the Warsaw Convention has been ratified by the United States Senate or entered into force. The Guatemala City Protocol amends the Convention by raising the liability limit to $100,000 per passenger. It also makes significant changes in the rules governing liability. See generally Mankiewicz, Warsaw Convention: The 1971 Protocol of Guatemala City, 20 Am. J. Comp. L. 335 (1972). First, the Guatemala City Protocol changes the language of Article 17 of the Convention. Instead of stating that the carrier is liabile "if the accident" occurred during international air travel, the amended section provides for liability "upon condition only that the event which caused the death or injury * * *" was incident to travel covered by the Convention. See International Civil Aviation Organization, 2 Documents of the International Conference on Air Law, Guatemala City, ICAO Doc. 9040-LC/167-2, at 189 (Feb.-M ar. 1971). (The significance of this change is discussed at pages 21-24, infra.) The new Article 17 also provides a defense if "the death or injury (of a passenger) resulted solely from the state of health of the passenger." Ibid. Second, the Guatemala City Protocol eliminates the due care defense for passenger death or injury. Mankiewicz, supra, 20 Am. J. Comp. L. at 338. Third, the Protocol deletes the provision of the original Warsaw Convention that permitted the passenger or his representative to seek unlimited liability based on wilful misconduct by the carrier, as well as that provision of Article 22 that authorized the carrier to enter into a "special contract" to raise the limits set by the Convention. Id. at 339. The Guatemala City Protocol retains in modified form the carrier's right to plead contributory negligence. Id. at 338. Montreal Protocol No. 3, in relevant part, incorporates the preceding amendments made by the Guatemala City Protocol and substitutes the use of an international monetary unit for the gold monetary conversion clause contained in the Convention. See S. Exec. Rep. 97-45, supra, at 4; S. Exec. Rep. 98-1, 98th Cong., 1st Sess 4 (1983). Montreal Protocol No. 4 amends and updates the cargo provisions of the Convention as modified by the Hague Protocol. The Senate Committee on Foreign Relations has recommended approval of Montreal Protocols Nos. 3 and 4, S. Exec. Rep. 98-1, supra, at 5, 6, but they have not yet been ratified. On March 8, 1983, the Senate voted 50-42 to ratify the protocols, falling short of the two-thirds majority needed for ratification. The protocols are still pending in the Senate on a motion for reconsideration. /7/ Respondent has not alleged that she has any cause of action in tort or contract outside the scope of the Convention. /8/ The court of appeals' approach makes the term "accident" completely meaningless in this context. Presumably, the only situation in which an injury would not result from an accident is one where the passenger expected to be injured on the flight -- for example, if respondent had been informed by a doctor before boarding that the cabin pressure changes would be likely to damage her hearing. In a case like that, the carrier obviously would not be liable because of the contributory negligence defense of Article 21. /9/ These waivers, of course, are binding on the carriers as a matter of contract. However, contrary to the court of appeals' statement (Pet. App. 7a), the Montreal Agreement is not "binding on * * * the United States" like the Warsaw Convention. /10/ Indeed, this is true even if, unlike here, the carrier is partly at fault. /11/ The views of these departments were conveyed in a letter from Deputy Assistant Secretary of State Franklin K. Willis and Warren L. Dean, Assistant General Counsel for International Law, Department of Transportation. /12/ Respondents have noted (Br. in Opp. 15-16) that the State Department used the term "absolute liability" in characterizing the system established by the Montreal Agreement. This term was used (perhaps too loosely) to refer to the fact that recovery was not available in the absence of negligence because of the agreement to waive the due care defense. It was never suggested that the Montreal Agreement extended liabilility to cases where the Warsaw Convention liability regime did not even apply because of the absence of an "accident" within the meaning of Article 17. /13/ This proposal was opposed by the delegate of the United States because it might lead to additional litigation on the question whether a particular event was an "accident." Id. at 45, Paragraph 41. /14/ The proposal to reinstate the word "accident" was defeated by a vote of 35-10. Id. at 47, Paragraph 2. /15/ To the extent there are differences between the two fact situations, they suggest that carrier liability would be more appropriate in the New Zealand hypothetical than in this case. Clear air turbulence is not encountered on every flight and, at least theoretically, the pilot might be capable of avoiding it. By contrast, normal cabin pressurization changes are a guaranteed part of any flight.