Transcript

IN THE SUPREME COURT OF THE UNITED STATES

AIR FRANCE, Petitioner, v. VALERIE HERMIEN SAKS

No. 83-1785

January 15, 1985

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:03 o'clock a.m.

APPEARANCES:

STEPHEN C. JOHNSON, ESQ., San Francisco, California; on behalf of the petitioner.

CARROLL E. DUBUC, ESQ., Washington, D.C.; on behalf of Republic of France as amicus curiae supporting petitioner.

BENNETT M. COHEN, ESQ., San Francisco, California; on behalf of the respondent.

PROCEEDINGS

CHIEF JUSTICE BURGER: We will hear arguments first this morning in Air France against Saks.

If you will give us a moment or two here.

Mr. Johnson, you may proceed whenever you are ready.

ORAL ARGUMENT OF STEPHEN C. JOHNSON, ESQ., ON BEHALF OF THE PETITIONER

MR. JOHNSON: Mr. Chief Justice, and may it please the Court, this case turns on the proper construction of a treaty. It also involves important considerations of judicial restraint under our constitutional system in the treatymaking process.

The treaty is the Warsaw Convention, the agreement governing it a national aviation. This Court considered and enforce the liability ceilings under that treaty last term in its Franklin Mint decision. We are asking the Court now to consider and enforce prerequisites for that liability under the Convention.

As the Court has noted this treaty has been in effect now for over 50 years, and has provided stable and internationally uniform rules governing international air transportation. There is, however, now pending a balanced package of amendments to the Warsaw Convention which have not yet been ratified by the U.S. Senate.

As the Court noted last term, those amendments remain on a -- calendar. The majority below has nevertheless upon judicial fiat enacted only one of those amendments by removing a prerequisite for carrier liability for personal injuries under the treaty as it now stands.

In so doing, the majority has misinterpreted the treaty and has inappropriately interfered with the treatymaking powers of the political branches.

In this case we ask the Court to enforce the provisions of Article 17 of the treaty. That article establishes as a prerequisite for carrier liability for passenger injury and death claims the requirement that such injuries or death be caused by an accident.

That prerequisite for liability has been universally recognized by the courts. The Third Circuit has properly, in our view, applied that prerequisite in its DeMarines decision by stating its two basic elements, first, that there be an accident, and second, that that accident proximately caused the injury.

The majority below has acknowledged the requirement. However, in the guise of treaty construction, their decision would effectively abolish that requirement by allowing recovery where a flight has been normal in all respects and no accident has occurred to cause the injury.

QUESTION: Mr. Johnson, the language in Article 18 dealing with property damage uses the word "occurrence" rather than "accident" in Article 18. In Article 17, dealing with personal injury, it uses "accident." Do you think that the recovery standards are different for property damage or baggage than they are for personal injury?

MR. JOHNSON: Yes, I do, Your Honor. I think that the --

QUESTION: The drafters of the Convention then, did they have greater concern for property damage than for personal injury recovery?

MR. JOHNSON: I think you have to look back into 1929, in fact, and still today, I think that under concepts like bailment rules there are generally stricter standards of liability than apply to the handling of baggage than there are to persons. I think when you do look back to the drafters' comments in 1929, it becomes very clear that they intentionally chose those words, "occurrence" for Article 18 and --

QUESTION: Is there something in the minutes of the drafting of the Convention to which we might refer that would point to this difference?

MR. JOHNSON: Yes, Justice O'Connor, there is. In fact, the president of the drafting committee, Mr. Gianinni, spoke to the Convention just before the vote was taken adopting Articles 17, 18, and 19. Nineteen establishes the basis for delayed claims.

And in his comments he stated that because there was a different case for liability in each of the three categories, that was the reason they broke out the three different articles, and he specifically stated, let me quote to you, he told the Conference that their committee "had deemed it would be better to begin by setting out the causes of liability for persons, then for goods and baggage, and finally in the case of delay."

And that was what was done by dividing up the three articles and stating the different conditions for carrier liability in each of the three situations.

QUESTION: May I ask one question? Do you adopt Judge Wallace's position in dissent? Specifically, he says there is an accident if you are flying along and you hit a little rough air and spill some coffee, that that would be an accident.

MR. JOHNSON: I think, Justice Stevens, yes, we probably do, but I think first of all you should realize that in this case I think we are dealing with the two extremes, the air catastrophe and the absolutely normal flight.

I don't think under any interpretation can that be considered to be an accident. I think that the dissent below has properly used the DeMarines standard.

QUESTION: But you would say then that if during a little bumpy air someone had a heart attack, that that heart attack would be covered; if it was just heart attack because of fear of landing, say, it would not be covered.

MR. JOHNSON: It's difficult, isn't it, when you get into the middle area, and in fact I think the parties to the Convention have had difficulty with this themselves. I have some comments to talk about these pending amendments, and even there, when they are talking about expanding the scope of carrier liability to include all events, which is not the current treaty, the treaty parties still hold back an exception for any injuries due to the internal state of the health of the passenger.

QUESTION: Well, yes, I guess everyone agrees that the injury must be caused by something related to the flight. In other words, if you had a heart attack in an airplane that you were going to have at home anyway, that would not be covered even under the Ninth Circuit view, as I read it.

MR. JOHNSON: I am sorry?

QUESTION: I say, I think both sides seem to agree that there must be something connected with the flight that caused the harm, so that if you had a heart attack in flight that you would have had at home anyway, that would not be covered even under the Ninth Circuit view, as I read it.

MR. JOHNSON: That is correct, and I think what you have to focus on is the event outside of the injury which causes it, and it is that event which should be unexpected, under the Third Circuit standard, and, I think, consistently with the Convention.

QUESTION: But if you adopt Judge Wallace's view, how do you know whether something is unexpected? Is it unexpected to the passenger or unexpected to the seasoned flier? I am still -- I am not sure your line is bright and clear.

MR. JOHNSON: If you look at the event, the two parts of Article 17's requirement, that there be an accident and that that accident in turn caused the injury, then I think if you look at the accident, it doesn't make too much difference from whose perspective you look at it, it is an unexpected event.

QUESTION: But if you look at it from the passenger's point of view, you might have a new passenger who didn't expect a dramatic change in air pressure within the cabin. It may well be unexpected that the passenger is going to have a problem with hearing.

MR. JOHNSON: I think another way to approach it, Justice Stevens, is to realize what the Warsaw Convention does. The Convention itself is and remains a fault-based system, and the standard under Article 17 for carrier liability set up a duty by the carrier to avoid accidents.

QUESTION: Then you are departing from the spilling of coffee example of Judge Wallace.

MR. JOHNSON: No, I don't think so, because I think you can easily see that a carrier has a duty to retain people that don't go about the airplane spilling coffee. Also in the air turbulence situation, there are regulations that require an airline to take measures to try to avoid air turbulence. So it is something that certainly is within the scope of things that the airline should be avoiding.

QUESTION: If I understood Judge Wallace, his example of burning oneself in air turbulence didn't depend at all on any fault by the airline.

MR. JOHNSON: That's correct. What we're looking at is the initial accident requirement. Once you apply that test and find that an accident has occurred, then it is like strict product liability. There is no --

QUESTION: My question is, how do you know when it occurred under your view? You use the language "unexpected," and I ask, to whom must it be unexpected, the passenger or the pilot.

MR. JOHNSON: I think if you go back to the fundamental purposes of the Convention itself, it would be more likely to be from the carrier's standpoint, but I think the primary focus is on the event itself.

QUESTION: Well, I am not saying you would have to, but then I think your position is different from Judge Wallace's. That is all I am suggesting.

QUESTION: Does the record show here whether any other passengers suffered any ear problems?

MR. JOHNSON: I am not sure if the certified record does, Your Honor, but I believe it may well be stated by the plaintiffs in opposition to the motion for summary judgment that there were no other complaints, no other problems on the flight.

QUESTION: Well, if there were, I would rather assume that the plaintiff would make it a point of showing that.

MR. JOHNSON: Yes, Your Honor, I am sure they would have, and in fact in responding to our motion for summary judgment, they conceded to the Court that this flight had been normal in all respects.

QUESTION: What about the terrorist attack causing injuries to a passenger? How does that fit in with your analysis?

MR. JOHNSON: Justice O'Connor, I believe those cases are consistent with the analysis here. They are certainly from the standpoint of the carrier unexpected events that do not occur, and they certainly --

QUESTION: And you would think there would be liability on the carrier for that?

MR. JOHNSON: Yes, I think that has been fairly well established now. The Husserl decision was the first one to reach that point, and it did find some basis in actual discussions among the treaty parties for finding that the accident liability would extend to those incidents, which is quite distinct from our situation here, you realize, where we have a perfectly normal flight, where there is no indication anywhere in the history of this Convention that that should fall within the prerequisites for liability.

QUESTION: How about an assault on a fellow passenger in a perfectly normal flight?

MR. JOHNSON: I think there again you can view that in terms of the duty of the carrier. It certainly is unexpected from the standpoint of the carrier, and I think that the carrier does have the duty to protect passengers from unexpected events like that, and assault by another passenger would well, I think, fit within the DeMarines definition.

QUESTION: What about a passenger who chokes to death on his food? That happens in the best of restaurants. What about that?

MR. JOHNSON: It is a bit more difficult, isn't it? I mean, these are not easy questions.

QUESTION: I don't know whether it is or not. It doesn't sound like it is for you.

MR. JOHNSON: Yes.

QUESTION: What about that one?

MR. JOHNSON: I am not sure. I think if it was something entirely internal to the passenger, that --

QUESTION: But if a passenger drinks too much and gets up and trips and falls because of that, that would be covered because the carrier has a duty not to serve passengers too much to drink?

MR. JOHNSON: There has been a case along those lines that suggested that ruling. Yes, Your Honor.

QUESTION: Yes. But if a passenger is just cleaning his fingernails and accidentally sticks himself, that wouldn't be covered, I guess.

MR. JOHNSON: I think that that's correct, exactly.

QUESTION: Well, you refer in several of your comments to the carrier's duty, and then you refer in many of your comments, and of course your position here is that an accident is required. How do those two intermesh?

MR. JOHNSON: You have to go back to realize that you are interpreting a treaty. The treaty does set forth the accident requirement. And that original requirement was based on a fault concept. The carriers have a duty to prevent accidents, not all occurrences.

QUESTION: Then in the Montreal Convention they in effect bargained away the fault.

MR. JOHNSON: Not necessarily. What they bargained away was the due care defense. In other words, once you have an accident, liability is presumed. Article 20 gave a basis to come back with a due care defense and say it wasn't the carrier's fault to avoid liability, but it is absolutely essential to realize that Article 17 was not at all addressed to the Montreal Agreement, as pointed out by the U.S. government's brief to this Court.

QUESTION: But once you have this unexpected occurrence, the carrier can't defend by saying we could not have prevented that occurrence by any sort of care.

MR. JOHNSON: That's correct, Your Honor. I think the task for this Court is simply to decide what the accident requirement means. That is correct.

There is a very good analogy, I believe, to what the majority below has done here. It is the strict product liability doctrine, where a manufacturer is held absolutely liable for the consequences of defects in their products. They are not held liable for all the injuries caused by their products.

So the task as I see it under the Warsaw Convention now is to recognize that there must be an accident before the absolute liability doctrine comes into play under the Montreal Agreement.

QUESTION: What about if on a landing they slam on the brakes and he gets thrown out of his seat?

MR. JOHNSON: If that happened, Justice Marshall, I think it would definitely be an accident. Aircraft are not expected to slam on their brakes and throw passengers out of their seats. It is a broad standard that the Third Circuit has enunciated to try to effect the intention of the parties.

I think it is important, though, to come back to the narrow issue presented by this case, and it is whether the respondent's injury in this case was caused by an accident within the meaning of Article 17, and the question is whether the everyday normal conduct of an aircraft, in fact the necessary operation of an aircraft pressurization system can be the independent accident that causes the injury.

As the Court well knows, the beginning point in the construction of a treaty is, of course, the language of the treaty itself, which should be construed to avoid rendering any word meaningless. This Court has recognized, as it did last term in Franklin Mint and long ago in the amiable Isabella, that the courts are not at liberty to dispense with any of the conditions or requirements of the treaty.

If we adopted the respondent's view of what the Warsaw Convention means, you could simply withdraw that phrase if the accident which caused, and just go on to say that the damage. There is no basis in the history of this Convention to suggest the majority view below is correct, and the decision below has departed from these basic principles by reading the word "accident" to mean any occurrence associated with the operation of the aircraft.

Carrier liability under Article 17 requires that the injury be caused by an accident, not by an occurrence, and this should be compared, Justice O'Connor, with the language in Article 18, where the word "occurrence" is used.

As I indicated, the Convention's history and the comments of the president of the drafting committee to my mind indicate that that was a deliberate choice.

Also, the parties' subsequent construction of the treaty, which is also ignored by the majority below, confirms that the respondent is now asking this Court to amend Article 17 as it now stands. I speak specifically of the proposed treaty amendments adopted in the Guatemala City Protocal of 1971 and included in the 1985 protocols, which as this Court recognized still await Senate ratification.

Several proposed amendments were adopted in those two diplomatic conferences which constitute a balanced package significantly increasing the carrier's scope of liability, increasing the liability limits in an exchange for more a unbreakable ceiling on carrier liability.

Part of the proposed compromise specifically amends Article 17 to change the word from "accident" to "event." If the amendments are adopted, the carriers will become liable for a broader class of injuries not now covered by the Convention.

The pending amendment to Article 17 reads exactly like what respondent is proposing this Court should have done. The treaty parties, however, have not yet adopted it. The present treaty is limited to injuries caused by accidents and not by normal events or occurrences.

You mentioned the Montreal Agreement. Both the respondent and the majority below assert that that 1966 private agreement among international air carriers effectively removed the Convention's act as a prerequisites for carrier liability.

The U.S.'s brief explains, as does the history, that that agreement addressed only the due care defense and in no way affected the prerequisites for carrier liability.

The task of this Court is to apply the provisions of Article 17 as they now stand. The rewriting and renegotiation of treaties are the tasks of the political branches. You have the amicus briefs of two of the principal acting nations responsible for the Warsaw system.

The Republic of France was largely responsible for the creation of the system in the 1920's.

QUESTION: Mr. Johnson, your brief mentions on Branch decision. Are there any, to your knowledge, are there any other foreign courts that have passed down this language?

MR. JOHNSON: Your Honor, I don't believe so, because normally in all other countries that are not affected by the Montreal Agreement, they go immediately to the due care defense. So there are some decisions in France, but those are the only ones that we have been able to find.

In addition to the Republic of France, you have their amicus brief, the United States, as the Court well knows, has been a most important force in the history of the Warsaw system since this country adhered to the treaty in 1934. Both governments join the petitioner --

QUESTION: May I ask about the -- of course, the United States isn't speaking to us, but their brief, they describe letter that they got from different departments of the government. Do you think it is proper for us to rely on that extra record material?

MR. JOHNSON: Your Honor, I would hesitate to say. I would certainly defer to the Court's judgment in that. You certainly do have the views of the Solicitor General which speak for the government.

And both governments do join now with the petitioner in asking you to enforce the treaty as it now stands and find that the injury in this case was not caused by an aviation accident.

CHIEF JUSTICE BURGER: Mr. Dubuc.

ORAL ARGUMENT OF CARROLL E. DUBUC, ESQ., ON BEHALF OF THE REPUBLIC OF FRANCE AS AMICUS CURIAE SUPPORTING THE PETITIONER

MR. DUBUC: Mr. Chief Justice, and may it please the Court, on behalf of the Republic of France, as indicated by Mr. Johnson, one of the principal signatories and one of the initiators of the original Warsaw Convention, we rise to emphasize to the Court on behalf of France and other countries of Western Europe as well as throughout the world the extreme importance to these nations of the continued enforceability, reliability, predictability, and uniformity of result with respect to dealing with matters arising under this treaty until such time as the signatories and the parties have come to a mutual agreement to modify it as might be necessary if desirable.

There have been questions from the Court today concerning a number of hypothetical situations and also a question of how other countries would have decided this issue. The Haddad case is cited in our brief in two or three opinions. There is an Air Intere case in France which is cited in our brief. There is also some commentary as to a Polish case by Razinsky, a commentary by the Societe Du Francaise Arien in France, the French Legal Society.

The thrust of those decisions is that an accident must be unpredictable and sudden in some aspects. They have accepted to some extent the hijacking circumstance. Haddad was in fact a case arising out of the infamous Entebbe hijacking, and the liability in that case, as Mr. Johnson mentioned, went off on the issue of Article 20, Sub 1, which provides the due care defense.

But the term "accident" as encompassing a hijacking in that case and in the Air Intere case where liability was established, that was recognized consistent with the meaning of Article 17.

QUESTION: The Entebbe case involved people who weren't parties to the Montreal Convention -- the Montreal Agreement. Is that right?

MR. DUBUC: Oh, no, Justice Rehnquist. The Entebbe case involved parties -- Air France was the carrier. There were two or three Montreal tickets which had been issued and delivered in the United States, and for the most part the rest of the tickets had no stopping place or destination place or destination here.

The issue didn't come up because there were some cases settled on behalf of the Americans. The Israeli cases were settled, and a large number of cases went off to decision. Lawsuits were brought here in the United States, and as to the carrier dismissed under Article 28, because there was no jurisdiction over the lawsuit here.

QUESTION: Why was the due care defense available if the carrier was of a nation who was a party to the Montreal --

MR. DUBUC: It was not available in the cases which were brought in France, so it did not come up, but the issue of whether accident qua accident encompasses a hijacking as opposed to the coffee spill, as opposed to the heart attack which was preexisting and long existing, as opposed to the problem with the fingernail, as opposed to phlebitis for example, or as opposed to Mr. Abramsom's hiatal hernea, which was preexisting, these consistently would not be included in the term "accident" in other countries.

QUESTION: How do you apply the unpredictability to the loss of hearing, a person who has never had any problem flying before, but he suddenly has a very unpredictable ear problem?

MR. DUBUC: I think, Mr. Justice White, I think and submit that on behalf of the government of France and other governments, the definition of accident would be something akin to the sudden, unpredictable mechanical failure or external means, external --

QUESTION: So there must be something else besides unpredictability, I would think.

MR. DUBUC: Yes, because the --

QUESTION: There has to be something that is connected with, what, flying, or --

MR. DUBUC: With either mechanical failure, human failure.

QUESTION: What about weather?

MR. DUBUC: Unpredictable weather which was not anticipated --

QUESTION: Weather is always unpredictable.

MR. DUBUC: You are correct.

QUESTION: And which was improperly --

QUESTION: Just say sudden turbulence, severe turbulence, unexpected.

MR. DUBUC: Sudden turbulence, yes.

QUESTION: And heart attack or swallow food or something. Is that covered or not?

MR. DUBUC: I don't think heart attack would be. There is a case which we -- of course, we did not submit a reply amicus brief, but I submit to the Court the case of Dalman against Pan American World Airways, 249 F 2nd 493, a heart attack case which occurred after the flight from -- alleged fright during the flight and there was no recovery.

QUESTION: But I am asking under your view if it were proven or stipulated that some harm resulted to a passenger as a result of turbulence in flight that might well have been predicted, but just very rough there.

MR. DUBUC: And provided the passenger was injured, I would assume the passenger probably failed to fasten his seatbelt when requested to do so, and if that was the case we go on to another regime.

QUESTION: No, let's make it a proven that he swallowed his food and some injury, something -- the causal connection is strictly caused by unexpected turbulence in flight.

MR. DUBUC: I think if it is proximately caused by an unforeseen outside force or mechanical defect or failure to --

QUESTION: No, no mechanical -- it is a very simple case, very simple case. The pilot is expecting turbulence. The passengers don't know how rough it is going to be. It is much rougher than they expect, and as a result of the turbulence, spill coffee, have heart attack, bump head, anything, but any of those, are they accidents or not?

MR. DUBUC: No, I would say that is not an accident.

QUESTION: Under your view they are not.

MR. DUBUC: I think that would be the view that we support, at least that we represent before the Court.

QUESTION: But that wouldn't necessarily be the view of even the cases that have gone in the direction you are urging us to take, is it?

MR. DUBUC: I believe --

QUESTION: Wouldn't there be some dispute about that response --

MR. DUBUC: Yes, there would be.

QUESTION: -- in the cases that we have?

MR. DUBUC: I am sure there would be, I am sure, and there are plaintiff's theories, and the plaintiff is very imaginative where they would come up with a theory of recovery on that, and if we were dealing with a jury and the proof balanced out in favor of the plaintiff, they might well recover.

I think we are making a very simple example of a complex case of proximate case, and proximate cause is a factor in this recovery --

QUESTION: The Solicitor General's brief argues that the Montreal Agreement was designed to provide prompt resolution of claims against airlines. I am not sure that I understand how your view of this complicated litigation of proximate cause is going to achieve that end. And how is the average passenger in a position to establish these things that you think have to be established to impose liability?

MR. DUBUC: Ms. Justice O'Connor, I believe that we already are seeing, this Court is seeing a number of cases in the last couple of years dealing with interpretations of this treaty which is under revision and which is spawning a lot of litigation to interpret some esoteric terms that have existed for 40 or 50 years and have been interpreted that way worldwide.

The uniformity of this interpretation is important. The decisions of this Court are very important. The fact that we are getting lots of challenges at this point is spawning litigation, because not only in the area of personal injury or death, but in the area of commercial matters, baggage, cargo, this is a commercial code, so to speak, a partial uniform commercial code worldwide for aviation matters.

And when we disturb the balance, when we disturb the balance of interpretation, particularly in a treaty which is under dynamic reconsideration by 120 parties, I believe we are creating litigation.

QUESTION: Well, quite apart from your concern about the adoption of a new treaty or amendments to the Warsaw Convention, I asked you about the effect of the Montreal Agreement as modifying the treaty that we have before us today, and the purpose of that, according to our Solicitor General, was to facilitate prompt resolution of claims.

And I don't see how your view moves in that direction.

MR. DUBUC: Ms. Justice O'Connor, the prompt resolution of claims anticipated by the Montreal Agreement was part of a quid pro quo which came as a result of the United States denunciation of the entire Warsaw Treaty in 1966. There was a balance and a quid pro quo between the other signatories in the United States to do two things only, only two things.

One was to increase the limitation as an interim measure while this negotiation in Tokyo, Guatemala City, Mexico City, and Paris went on driving toward a potential amendment.

The second was to eliminate the defense of due care, but not to make an absolute liability. Even absolute liability has a proximate cause inferring an accident as an element. Even in California. Even in the Ninth Circuit.

To make this an absolute, the interpretations of commentators are not the interpretations of signatories. We submit to change a treaty definition or intent, you have to have the signatories agree. The United States agrees that it requires an accident. France agrees it requires an accident.

Most of the 120 signatories, virtually all of them, although we haven't polled them all, but we certainly haven't seen any opposition, agree with that accident interpretation.

So, the Montreal Agreement is still interpreted to require an accident with a presumption of responsibility, but not automatic liability. I suppose the plaintiff's --

CHIEF JUSTICE BURGER: Your time has expired now, counsel.

MR. DUBUC: I am sorry. I was just answering -- are there any other questions?

CHIEF JUSTICE BURGER: I think you have answered the question, unless Justice O'Connor wishes you to pursue it.

QUESTION: No, it was non-responsive to my question, and I am satisfied.

CHIEF JUSTICE BURGER: Very well.

Mr. Cohen.

ORAL ARGUMENT OF BENNETT M. COHEN, ESQ., ON BEHALF OF THE RESPONDENT

MR. COHEN: Mr. Chief Justice, and may it please the Court, the issue presented is whether a total hearing loss suffered by an airline passenger through no fault of her own is a compensable injury under the Warsaw Convention as modified by the Montreal Agreement where her hearing loss was proximately caused by the operation of the aircraft, and was a risk inherent in and peculiar to air travel.

I would like to make three factual points at the outset. Number One, if this Court were to affirm the Ninth Circuit's decision and return this case to trial, a one-day court trial would consist in part of the testimony of a board certified ear, nose, and throat specialist who would testify to a reasonable medical certainty that but for those pressure changes in that aircraft, the microhemorrhaging and consequent hearing loss in Ms. Saks would not have occurred, and that this hearing loss closely resembles other hearing losses he has treated due to pressure changes in aircraft.

QUESTION: Were there any other hearing losses of any other passengers on that day and on that flight?

MR. COHEN: None that we know of, Your Honor.

QUESTION: Wouldn't you think that is a somewhat important predicate for your case?

MR. COHEN: No, Your Honor, we do not --

QUESTION: Suppose, then, suppose that she was the only one out of 225 passengers, she is the only one that suffers this. You are suggesting that would stand, that would be a compensable injury?

MR. COHEN: Yes, Your Honor, if she is the one out of 200, yes, and I think to answer the Court's question, we should look to the intent of the original framers and as the Republic of France stresses, we should look at the intent of the framers in light of the conditions and circumstances which existed at the time the treaty was drafted.

If we could imagine ourselves back in 1929, when aviation was admittedly and according to a CAP memo we cited an extremely risky mode of transportation, and imagine ourselves at an airport where we are watching passengers embark and disembark onto prop planes which today would be museum pieces, and say on Day One, because of the normal routine spinning of the prop, a boarding passenger has a piece of glass or a particle or something flung into his eye, causing blindness.

The next week, a passenger is boarding, and due to the normal, routine noise made by the prop on the plane he is boarding or one nearby, he suffers a total hearing loss. The next week, we are on the plane itself, and due to the normal, routine noise inside this insulated passenger cabin, another passenger suffers a hearing loss.

Wouldn't the original framers have intended, and their primary purpose was to protect these fledgling airlines with a liability ceiling, wouldn't they have intended to have this ceiling protect these airlines from potentially ruinous liability to allow these airlines to not only have their operating costs, but to channel money into research and development to correct these types of deficiencies, or, as petitioner suggests, would the framers have intended that these injuries, that the airlines be exposed to unlimited exposure.

If we imagined back in 1929 that at year's end there are not just these three people but a half-dozen more or 30 more lined up at the county clerk's office, complaint in hand, alleging $50, 000 each in provable damages, surely the original framers would have wanted these fledgling, financially insecure airlines protected in those situations.

Now, Justice Stevens raised an important point with regard to air turbulence, because the entire thrust and common thread throughout the cases dealing with the Warsaw Convention is the interest to protect both the airline and the passenger from risks inherent in air travel.

The petitioner stresses that the common thread is really a sudden, unexpected occurrence, but let's look at air turbulence. When you board the plane, the pilot says to you, fasten your seat belt and keep it fastened when you are seated. The pilot may thereafter come on the intercom and say, we can expect to experience turbulence at this time, over this state, and it is going to be this rough.

Yet no court has questioned the right on the passenger to recover in that situation where due to the totally anticipated usual and expected turbulence he suffers some kind of injury.

QUESTION: Well, to pose a more extreme example, I suppose if the pilot announces that all the engines are gone, we are going to crash in two minutes, the fact that you then crash does not make it not an accident just because you expected it for the last two minutes.

MR. COHEN: Correct, Your Honor, that would certainly be an accident under the Third Circuit's formulation or under the formulation we are urging, which is an injury proximately caused by the operation of the aircraft and risk inherent in flight.

QUESTION: But how does that incorporate the word "accident?"

MR. COHEN: Well, long ago, Your Honor, the word "accident" -- I guess I am not understanding the Court's question.

QUESTION: Well, you just gave two tests, I guess, for imposing liability, neither of which seem to me to deal at all with the word "accident" which you find in the language of the convention.

MR. COHEN: That is because, Your Honor, the original framers intended either the word "accident" or "occurrence" to be comprehensive words, as comprehensive as possible.

QUESTION: Why did they use two different words then?

MR. COHEN: There is a good reason for that. Number One, in the preliminary draft of the treaty, there was no -- they weren't distinguished. They were all listed under the same article. However, as Daniel Goodhice, who will be cited in our brief, who was a highly respected aviation expert back in the thirties, states, the word "accident" was used because the airlines should not be responsible for intentional wrongdoing by passengers.

In other words, if one passenger stood up and decided to strike a fellow passenger, that is not something for which the airline should be responsible. The term "occurrence" was meant to cover, since the baggage was totally in the custody and control of the airline, it was meant to cover such things as theft or perishable goods going bad, which would not necessarily be accidents.

QUESTION: Well, then, you agree that accident and occurrence mean two different things in the convention.

MR. COHEN: They mean -- the distinctions are slight, Your Honor, and let me give you one example why we should not make much of that distinction. If on an airline you have in the baggage compartment a dog with his owner traveling above, and due to the normal, routine pressure changes or noise levels in this airplane both suffer hearing losses, under petitioner's view, the dog, or I should say the owner of the dog can recover for the hearing loss of the dog, while he himself is foreclosed. The dog is entitled to a presumption of liability to which the owner is not.

QUESTION: That is because the word "occurrence" is a good deal broader than the word "accident." That doesn't shock me, your example.

MR. COHEN: Well, if we look at both what Mr. Goodhice says and also what a 1949 ICAO convention, a committee which met to consider revisions of the Warsaw Convention, they reiterated, and this is cited by Air France and, I believe, the U.S. government, they reiterated Mr. Goodhice's explanation that the word "accident" was used to ensure that the airlines were not held responsible for an irate passenger giving another passenger a black eye, because that is not a risk inherent in air travel. However --

QUESTION: How about terrorist attacks?

MR. COHEN: Yes, Your Honor --

QUESTION: Under your view, then, there would be no airline liability for injuries caused to passengers by terrorists?

MR. COHEN: No, Your Honor. With the advent of international terrorism, and that is the context in which the Guatemala Convention met and urged that the word "event" be substituted for the word "accident," people were beginning to realize that the airlines could be subject to ruinous exposure due to these terrorist attacks. Also --

QUESTION: Well, if I understand your view, injuries inflicted intentionally by another person upon a passenger do not impose liability on the airline, so I assume that under your present view there would be no liability for the terrorist attack.

MR. COHEN: No, Your Honor.

QUESTION: What do you mean, no? You don't agree with that?

MR. COHEN: I don't agree that that is the ramification of the position we are advocating. Number One -- there are two reasons for it -- the Montreal Agreements deprive the airlines of all due care defenses.

Number Two, the cases dealing with terrorism, such as the Day case and the Evangelino case, all state that terrorism should come within the definition of accident because now in the present day world they are risks inherent in air travel.

And that is what I meant originally when I said the common thread throughout these cases was not something sudden, unexpected, and unusual, but rather risks inherent in air travel.

QUESTION: Mr. Cohen, is there anything in the record that shows how many occurrences just like this happen without anybody claiming loss of air problems?

MR. COHEN: How many --

QUESTION: How many times a plane has landed and had the same problem with the reduced pressure and nobody made any claims.

MR. COHEN: And nobody made any claims? We have been unable to find that. However, Your Honor, during World War Two, and this is well substantiated by a cite in -- it is either DeMarines or Warshaw, the primary occupational hazard for pilots was temporary deafness due to the same types of pressure changes.

There may be, and I can't say for sure, plenty of claimants out there who suffer problems who never -- redress.

QUESTION: I have done a lot of problems, and I have an ear problem. I mean, I have done a lot of traveling by air, and I've got ear problems. Should I sue?

MR. COHEN: Your Honor, you would be --

QUESTION: I would sue all the airlines. I have been on most of them. Including this one.

MR. COHEN: I feel hesitant giving legal advice to the Court.

(General laughter.)

MR. COHEN: However, Your Honor, if you did suffer a hearing loss due to the pressure changes in the plane proximately caused by the plane and the type of injury that is intimately associated with the operation of airlines, yes, you would be entitled to compensation, we feel, in conformity with the intent of the original drafters.

QUESTION: Let me put this one to you. Suppose someone comes on board, a lawyer, and puts his briefcase with five heavy books in on the open overhead rack, and the general practice of airlines is that they don't let you put heavy things up there. Then some turbulence occurs, whatever degree, and the briefcase, with five or six or seven U.S. Reports in it, falls on the head of a passenger.

Now, that is an accident, isn't it?

MR. COHEN: Yes, Your Honor, it's an accident --

QUESTION: And it's an accident that could have been prevented if the airline had enforced its own rules.

MR. COHEN: Probably, Your Honor.

QUESTION: So the injured fellow who got these books on his head, this briefcase on his head, has got a case, hasn't he?

MR. COHEN: He has a case either under the Third Circuit's formulation or under the formulation we urge today.

QUESTION: But then to go to one of the recent questions, you do not claim that any other person on this plane suffered any hearing problem.

MR. COHEN: Yes.

QUESTION: Do we know how many people were on the plane? Was that alleged in the pleadings?

MR. COHEN: No, but it was a 747, and I think we could safely assume it was several hundred. We don't know exactly how many.

QUESTION: Well, I suppose -- Justice Rehnquist asked you what content do you give to the word "accident." I suppose at least you give it a meaning of there being an unintentional injury. That is one of the definitions of accident, I suppose.

MR. COHEN: That is one of the definitions, Your Honor. There are many definitions of accident, some which may support petitioner. Many of them support us. And the interchangeability of the word "accident" and "occurrence" cannot be denied. For example, if Your Honor were to go home tonight and look at his own accident insurance policy, and look at his coverage, he would probably see --

QUESTION: Would the Warsaw Convention limit the liability of a carrier if one of its employees deliberately assaulted a passenger?

MR. COHEN: Under the present system, it would not, because willful misconduct gets you around the liability limits.

QUESTION: Exactly. Because it is no longer an accident.

MR. COHEN: No, Your Honor.

QUESTION: Because of some other provision in the convention?

MR. COHEN: The willful misconduct exception applies only to acts by agents or employees of the airline.

QUESTION: Is that in the convention?

MR. COHEN: Yes, it is now, and that raises an important point. The Senate bill, the bill currently before the Senate to which I believe both Air France and Republic of France cited, would substitute the word "event" for "accident," and would, as counsel states, and he states in his brief, reply brief, on Page 6, produced the result respondent seeks.

If it would produce the result respondent seeks, then it would necessarily work a radical departure from the present scheme and bring with it the parade of horribles they say the Ninth Circuit's decision causes.

And I ask the Court why, then, would President Gerald Ford, a conservative Republican, President Jimmy Carter, and President Ronald Reagan all give their full support to such a system which would open the floodgates and cause all these problems?

Additionally, in the letter of transmittal cited by the United States and the Senate hearings and the report of the Senate Foreign Relations Committee, there is absolutely no mention of any intent to change the scope, the meaning, or do any type of historic reform of Article 17, the accident causing injury.

Rather, and the most sensible interpretation is that the change in language was rather intended to better express what the Warsaw drafters originally intended.

There are consequences of finding this case not to be under the Warsaw system, which I think are worth discussing in the few minutes left. As the cases uniformly state, if this case does not come within the Warsaw system, this or ones like it, then it is back under common law negligence, and duty of the common carriers we know since the late 1800's has been that of the utmost care and diligence.

Again, let's imagine we are back in 1929, and these types of incidences are not covered by the Warsaw Convention. We have a skillful plaintiff's attorney who goes into court, and blessed by a jury instruction of the utmost care and diligence, obtains a jury verdict of $100,000 or more, well in excess of the carrier's ability to pay.

There we have a situation where the principal purpose of the Warsaw Convention, which was to invoke a liability shield or ceiling for the airline, is totally defeated.

QUESTION: Are you suggesting that if something is not an accident within the meaning of the convention that we are talking about, then one can sue the carrier under state common law?

MR. COHEN: Absolutely, Your Honor, and that is what the Abramson case says, the Husserl case, and all the other cases we have cited towards the end of the brief, and it is not subject to serious dispute, though petitioner attempts to distinguish those cases.

Article 24 of the Convention says for cases covered by Article 17, the limitations and conditions apply, meaning the liability ceiling. The courts have clearly said in the Abramson case, and the Third Circuit said it in 1984, that if Article 17 doesn't apply, in other words, if there is no accident, you are allowed --

QUESTION: Does that make any sense to you? I mean, the air carriers got absolutely nothing then by this convention, if you are right, because every time the convention gives them a beneficial interpretation, the plaintiff says, well, it is outside the convention so we sue at common law. Does that make sense to you?

MR. COHEN: Not, Your Honor, respectfully, not as phrased . We are asking for a broader interpretation which would allow the airlines to have a liability ceiling applied to more situations. The consequences of not allowing a plaintiff to sue at common law, assuming grievous negligence on the airline, would be to in effect insulate the airline, provide him an immunity for what could be routine negligence.

For example, take the Abramson case, facts where the man got on the plane with a hernea condition, and he told the stewardess that he needed to lie down. Knowing , aware of his problems, having the ability to correct the problem, she nevertheless declined to do so. And she may have violated TWA or whatever it was express policy.

There was a wrong. If he is not allowed -- and the court clearly held it was not an accident and not an accident in part because it was not -- that type of injury was not a risk inherent in flight, and therefore not an accident. If there is no remedy, then Mr. Abramson has no chance of recovery --

QUESTION: Well, if the Warsaw Convention is modified by the Montreal Agreement, says an airline is to be liable to a passenger in a case of accident, and this is not an accident, then you have to ask yourself, was this meant to be the exclusive liability for international carriers, and I dare say a lot of airlines probably thought it was. I mean, the fact that one particular person can't recover for some kind of peculiar situation isn't a denial of justice across the board.

MR. COHEN: I think the Court is correct that originally the -- and that was my argument at the outset when I cited those examples from 1929 with the ear injuries due to the normal rotation of the prop, the airlines and the countries probably wanted this to be extremely comprehensive, indeed, the sole exclusive remedy.

However, if we are allowed to interpret the word "accident" narrowly as petitioner contends, then the inevitable effect under all the cases will be, we will be back in state law court with unlimited exposure and seven-figure verdicts against the airlines.

QUESTION: Do you think that modifies the Warsaw Convention somehow?

MR. COHEN: Does what --

QUESTION: That the convention is modified by virtue of the holding that we would potentially make in this case?

MR. COHEN: Not at all, Your Honor. I believe that this Court --

QUESTION: It sounds like that is your argument.

MR. COHEN: No, no, Your Honor, I respectfully urge that this Court adopt the formulation I expressed in the issue presented, which --

QUESTION: Suppose we don't. It sounds like you are arguing then that the result of that is a modification of the Warsaw Convention itself.

MR. COHEN: I believe that it would -- rather state it this way, that it would not be achieving the intent of the framers in light of the conditions and circumstances in which the treaty was drafted.

QUESTION: May I see if I understand your argument, which I frankly hadn't entirely before? What you are saying, as I understand it, is, if the normal operation of an aircraft in a few seconds is to change cabin pressure by increasing it from -- the equivalent of 6,000 feet change in altitude immediately, that is normal, and if that frequently and repeatedly caused hearing loss to passengers, normally did so, you might say that is not an accident under their definition. It is nevertheless negligence to continue to do this, and you have a common law remedy.

MR. COHEN: It may very well be negligence, Your Honor.

QUESTION: That is your theory.

MR. COHEN: Yes, and if this case were returned --

QUESTION: So if it is not an accident it is just outside of the treaty entirely.

MR. COHEN: Absolutely, and if this case were returned to trial to the District Court and not under the Warsaw Convention, what we would have to embark upon as any plaintiff would would be a massive discovery program to the FAA, the NTSB to see whether there has in fact been a trade-off between cost and safety.

QUESTION: May I ask if under normal operation -- I am just not quite clear. Do they mean by the particular airline or by the airline industry? In other words, I could imagine that pressure changes could differ from airline to airline.

QUESTION: And plane to plane.

MR. COHEN: Yes, that is correct, and petitioner's argument would have the following effect if you assumed you had a new airline which had a much better pressure system than Air France's, and Air France continued to fly its own planes.

The pressure system in this new airline malfunctioned so as to achieve the same type of pressure changes in Air France's 747. The incongruous situation would be that you could recover against this superior airline that had the slight malfunction so as to function like the Air France plane, yet Air France would be immunized or would be not subject to the Warsaw Convention.

QUESTION: Mr. Cohen, do I understand -- suppose this were an accident. Would your client nevertheless have had the option to sue in state court?

MR. COHEN: Well, the complaint was filed in the state court and quickly removed to federal court, and all parties agreed that the Warsaw Convention applied. No, we would not, Your Honor, have the right to -- we could file in state court under the Warsaw Convention if it were not against a foreign airliner.

QUESTION: What I am trying to get to is , as I understood your colloquy with Justices O'Connor and Stevens earlier, you said that if this is not an accident, then your client may be relegated to a state court suit --

MR. COHEN: I really mean common law.

QUESTION: -- with a possible -- common law.

MR. COHEN: Yes. I am sorry.

QUESTION: With a possible recovery in six or eight figures.

MR. COHEN: Or more. Well, not for this case necessarily, but --

QUESTION: I can't understand if that is available to you why you would want to press a Warsaw Convention suit where you are limited to $75,000.

MR. COHEN: If this case were a case of total deafness in both ears, like the rest -- but the plaintiff part does not support us in our position here because they want accident construed as narrowly as possible to allow them to get those large verdicts . However, in a case such as this, with the hearing loss in one ear, the damages are not that high.

The discovery involved in this case alone to prove negligence on the part of the airline in using this type of pressure system or not improving it would be $30,000, $50,000 by the time we recovered, all our costs would eat up the recovery. So under this case as practical matter, the Warsaw Convention will not only save everybody money, but it would mean that the Court, the District Court would --

QUESTION: Now, if it is an accident, what is there about the Warsaw Convention that bars your suing in state court under common law?

QUESTION: The limitation.

MR. COHEN: Article 24 specifically.

QUESTION: But your earlier answer in effect would repeal the Warsaw Convention so far as the limits are concerned. The whole purpose of the Convention is to put a limit which initially was $8,333 translated from French francs, but if you say that you can go in with common law action, then you might as well tear the treaty up.

MR. COHEN: Then I misspoke, Your Honor. What we are saying is that these types of injuries should come under the Warsaw Convention, so they will be necessarily subject to the $8,300 limit. However, if the Court were to find that all these hypotheticals I have postulated are not accidents, then we are totally outside the Warsaw Convention. The liability ceiling does not apply, and the airlines are exposed to --

QUESTION: It is as though the Warsaw Convention had never been adopted.

MR. COHEN: Yes. If it is not an accident, it is as if it had never been adopted.

And I may have a minute left, Your Honor, and I wish to make a couple of comments with regard to the uniformity issue raised by the Republic of France.

There are values higher than uniformity. It is better for this Court to be out of step with the Republic of France and right than to be in step with the Republic of France and wrong. Years ago segregation was the uniform law of the land, and that was changed despite the fact that it was uniform because our value system said it was wrong. We are not asking this Court to change the Warsaw Convention or make a modification in it. Rather, you are asking the Court to recognize the original intent of the framers in an attempt to achieve its underlying purpose as conceived in 1929.

Thank you.

CHIEF JUSTICE BURGER: Do you have anything further, Mr. Johnson?

MR. JOHNSON: Yes, Mr. Chief Justice, I do.

CHIEF JUSTICE BURGER: You have two minutes -- you have two minutes remaining.

ORAL ARGUMENT OF STEPHEN C. JOHNSON, ESQ., ON BEHALF OF THE PETITIONER - REBUTTAL

MR. JOHNSON: Thank you, Your Honor.

The short answer to the question of remaining state law claims is very simple. It is on the face of the treaty itself. It is on the face of the treaty itself. There were two purposes in that treaty. One was to establish some limits for liability. The other was to provide uniform rules governing international air transportation, as stated in the preamble to the convention, and Article 1 states that the treaty applies to all international aviation persons and aircraft for hire.

Article 24 in the convention states that all the claims brought under that treaty shall be subject to the conditions and terms of the convention. That does make the convention the exclusive --

QUESTION: What of the case where it is not an accident? Does that preclude the common law suit?

MR. JOHNSON: No, Your Honor, it does not. Article 17 sets the prerequisites for injury liability, 18 for baggage liability --

QUESTION: What would be the theory of the case?

MR. JOHNSON: I am sorry?

QUESTION: What would be the theory of the case if it isn't an accident?

QUESTION: On what theory would the pleading asserted?

MR. JOHNSON: If there was a negligence claim? If it was not an accident?

QUESTION: Yes. You say then the common law claim would arise.

MR. JOHNSON: No, I am saying that there would be -- if there was any conceivable -- and I have some problem conceiving of it --conceivable other cause of action or claim, it would be subject to the Warsaw requirement that there first be an accident before you have liability.

QUESTION: I know, but there isn't any. Then what happens to common --

QUESTION: Suppose there is no accident. Then you say that it is as though the treaty hadn't been adopted. You just sue the airlines in a garden variety negligence suit.

MR. JOHNSON: No, I don't, Your Honor.

QUESTION: I thought you said that.

MR. JOHNSON: I am sorry, I misspoke. If it is an injury claim or a death claim, it is subject to Article 17's prerequisite for liability, and the second purpose of this treaty was to establish uniform rules. The Second Circuit in its Benjamins decision has recognized that --

QUESTION: So you are saying that before an airline can ever be liable for anything there has to be an accident.

MR. JOHNSON: If there is an injury --

QUESTION: And if there is an accident, it is then subject to limitation.

MR. JOHNSON: Yes.

QUESTION: May I ask, I want to be sure, there is quite a wide difference of opinion between you and your opponent on the fundamental of the treaty. Assume you are right, that this is not an accident because it is the normal operation of the aircraft, and you are therefore not within Article 17.

Are you saying that even though this happened to thousands of people in normal operation, it could therefore be proved to be negligence, and I am not suggesting it could, but this I am on a hypothetical, that they would not then be able to sue you in negligence for saying that you normally operate your aircraft in a negligent way even though there are no accidents caused by it?

Couldn't they sue you at common law?

MR. JOHNSON: Your Honor, I think you are talking about the airline not under the Warsaw Convention --

QUESTION: Correct.

MR. JOHNSON: -- because -- that liability is not established.

QUESTION: His theory is, if you get outside of accidents, you also get outside of the liability limitation.

MR. JOHNSON: Yes, Your Honor, and --

QUESTION: That is correct, is it not?

MR. JOHNSON: No, it is wrong.

QUESTION: So the liability limitation applies even if there is no accident, is your view.

MR. JOHNSON: The liability limit applies to claims for injury and death in international air transportation under the convention.

QUESTION: Other than Article 17, something other than Article 17?

MR. JOHNSON: That is correct, Your Honor. Most of the cases that have said there are remaining state law claims apply to incidents that occurred outside the course of the transportation. The convention doesn't apply at all. Here we have a case where an injury occurred on board the flight. It is dead center in the convention, and the convention's own language makes it clear that that is --

QUESTION: Is a liable limitation found in Article 17?

MR. JOHNSON: No, it is a later article, I think, Article 23, under the convention sets limits.

QUESTION: And that applies even though the incident is not one described in Article 17?

MR. JOHNSON: Well, in a sense it wouldn't apply because you have to have a direct -- for liability first under the convention's uniform rules before you begin to consider a limit on liability.

I refer the Court to the Benjamin decision in the Second Circuit where they address this issue and also discuss the uniformity aspect, looking to some legislation outside of this country on the exclusivity question.

Thank you very much.

CHIEF JUSTICE BURGER: Thank you, gentlemen. The case is submitted.

(Whereupon, at 11:05 a.m., the case in the above-entitled matter was submitted.)