El Al Israel Airlines v. Tseng - Oral Argument

Argument of Diane W. Wilson

Chief Justice Rehnquist: We'll hear argument now in No. 97-475, El Al Israel Airlines v. Tsui Tseng.

Ms. Wilson.

Mr. Wilson: Mr. Chief Justice, and may it please the Court:

We are here today requesting the Court to hold that a multilateral treaty of the United States, commonly known as the Warsaw Convention, exclusively governs recovery for passenger injury sustained in the course of international air carriage.

We are not contending for a broad right to avoid liability.

We are requesting the Court to uphold the faithful reading of the convention.

Ms. Tseng is seeking purely emotional distress damages as a result of being subjected to a security search, an integral and vital part of maintaining the safety and security of international air transportation.

The legal issue before the Court, however, is not confined to the issue presented in her case.

It is a global issue because there are over 120 nations adhering to the Warsaw Convention.

Justice O'Connor: May I ask you a preliminary question that is a little confusing?

The court below found that this was not an accident.

Is that right?

Mr. Wilson: Yes, Your Honor.

Justice O'Connor: And we take the case on that assumption.

Mr. Wilson: Yes, Your Honor.

Justice O'Connor: And there is an article in the convention setting aside limits of liability in the case of willful misconduct, but we don't have that issue before us in this case?

Mr. Wilson: I would submit, Justice O'Connor, you do not because the trial court found that there was no willful misconduct in the facts of this case, and that finding was not disturbed by the court of appeals, and therefore I do not believe it is before the Court.

Justice O'Connor: And if there were a case of willful misconduct, then there... there would be no limit on the liability, or you would look to the law of the nation trying the case to determine that liability?

Mr. Wilson: Justice O'Connor, we would submit that you do not reach the issue of willful misconduct if you do not reach the threshold issue of meeting the conditions under article 17.

Willful misconduct wasn't intended to be read outside of the convention.

If you were to do so, then you would be not reading into the convention the fact that articles 17, 18, and 19 state the instances when the carrier shall be held liable.

Article 25... excuse me... article 22 limits that liability, and article 25, you lose the limit if you have willful misconduct.

But if you read that there's a recovery outside of the convention that your holding is that you have an instance where you have passengers attempting to prove that there isn't an accident so that they are unable to seek damages without limit.

Justice O'Connor: So, in any event in this case, we simply don't address the issue of article 25 and how that would bear on it.

Mr. Wilson: Yes, Your Honor.

There's no reason to address that in this case.

Justice Scalia: Except that under your interpretation, we are left with the... with the surely unusual situation in which if there is a willful tort committed by a carrier, so long as it is not an accident, there is no recovery.

That's... extraordinary.

Mr. Wilson: Well, it...

Justice Scalia: Isn't that right?

I mean, isn't that the consequence of... of the interpretation you're giving to the... to the treaty?

Mr. Wilson: Yes, Your Honor.

If you don't satisfy both conditions, bodily injury and an accident, you're not entitled to recover under the convention.

Justice Scalia: Why would anyone write a treaty like that?

I mean...

Mr. Wilson: Well, at the time that the convention was drafted, it was 1929.

The carriers were free to disclaim any and all liability, and it was a compromise to have the liability that was created under the convention to be limited except for in the circumstances provided for.

So, if you allow the passengers to seek unlimited recovery outside the convention, you're creating an incentive for them to try and prove there isn't an accident so that when they don't have bodily injury, they can seek unlimited damages.

Chief Justice Rehnquist: But that still doesn't seem to me a good explanation for why the convention would cover accidents that really were no fault of the carrier and exclude liability for something that's intentional wrongdoing on the part of the carrier.

Mr. Wilson: Well, they... I don't believe the drafters thought they were doing that because when they drafted the convention, they also had article 20 which was the all necessary measures defense.

Although carriers that fly into and out of the United States are not entitled to avail themselves of the all necessary measures defense, that's where the fault issue really came into play.

It was the unusual, unexpected occurrence as defined by Saks which would determine whether you have the accident requirement, and even if you did, if the carrier was able to establish that it had taken all reasonable measures that it could take, it wouldn't be liable.

And if... it was only if you weren't able to establish that burden as the carrier, then you would have limited liability.

Chief Justice Rehnquist: Why isn't it just as fair a reading... and granted, article 25 is not before us in this case, but when we're construing the convention as a whole, we have to have some mind for the type of thing article 25 covers... just as fair a reading of article 25 to say that the convention does permit recovery, but the limits are off?

Mr. Wilson: To do that, I believe you have to ignore the scheme as to how the articles under the liability chapter were set forth.

Justice Ginsburg: Ms. Wilson, it might help if you gave examples of what has been considered willful misconduct.

A very recent example is the KAL case; that is, it is an accident, but the conduct was found by a jury to be... to amount to willful misconduct.

So, as far as I know, the cases that have come up under the convention involving willful misconduct have been categorized as accidents, and then the question is, if the conduct was so egregious, the limits on liability are off.

Is there any case of willful misconduct other than the KAL pattern?

Mr. Wilson: Well, there are the willful misconduct instances with respect to, for example, the Pan Am Lockerbie bombing.

The terrorist attack of placing the bomb on board the aircraft wasn't what was found to be the willful misconduct, although it clearly was intentional conduct.

The willful misconduct on the part of the carrier had to do with their security measures and their program or the lack thereof.

And there are other instances in which the... there have been terrorist attacks or hijackings in which the carriers are found to be responsible in damages, but they're not held to the level of willful misconduct.

And, therefore, the limit of the passengers is the limit that is applicable.

Justice Scalia: In the Lockerbie situation, would the... would the carrier's... let's say it is willful... failure to... to have adequate security measures... would that be considered an accident so that you could come under the treaty?

Mr. Wilson: Well, the court didn't address on point, when they reached the Lockerbie decision, the issue of whether the security measures was what triggered the accident requirement.

Justice Scalia: Well, just tell me your view.

Mr. Wilson: Well, my view is that the...

Justice Scalia: Would that be an accident?

Mr. Wilson: Well, yes, but... but it also would have... the accident also could be the unusual and unexpected event of having the bomb placed on the aircraft, but the conduct of the carrier that rose to the level of intentional, the willful misconduct on the part of the carrier, was their security program.

Justice Scalia: And would that be... was that an accident in your view?

Mr. Wilson: Yes, I believe that would... could constitute an accident.

I just don't think that was what the court...

Justice Scalia: I see.

Mr. Wilson: was driving at in that case, Your Honor.

Justice Breyer: You mean in Lockerbie they were found to have willfully defaulted in taking security measures?

Mr. Wilson: Yes, Your Honor.

Justice Breyer: They said we... we want no security.

We want the risk of bombs.

I mean, is that the sort of finding that had to be made?

Mr. Wilson: No.

I believe, Your Honor, that the Lockerbie decision rested more on the fact that Pan Am was charging a $5 surcharge per passenger for the heightened security that they claimed that they were providing when, in fact, it turned out that the trial showed that they had done such things as taken dogs from the local pound and pretended like they were trained as dog...

Justice Breyer: They were doing nothing for their $5, in effect.

Mr. Wilson: Right.

In fact, you could say they were misrepresenting the nature of the security they were providing.

Justice Ginsburg: Do I understand that from your point of view it doesn't matter?

If this were an accident, then the district court said, yes, it's an accident, but there was no bodily injury.

End of case.

So, you're here contesting the Second Circuit decision, but as far as your client is concerned, categorization of an accident... as an accident would be fine.

Is that...

Mr. Wilson: Well, broadly speaking, that's true, but in the context of international security, to hold that the provision of security services is an unusual and unexpected event, I do not think would be borne out.

The... we didn't need to reach that issue in this case because you need to meet both conditions in order to recover under the convention, and it was undisputed by the respondent that plaintiff did not sustain a bodily injury and that she was in the course of embarkation.

So, the only issue that ended up going up insofar as the respondent was concerned when he appealed or, I should say, Ms. Tseng appealed to the Second Circuit was whether the court was incorrect in finding that the search constituted an accident.

But for us to bring it up to this level, it's the... it's the broader issue of whether or not the treaty is exclusive, and if you don't meet both conditions, you don't have a right to recovery.

And in this particular case, you didn't have to reach the accident issue because she didn't have bodily injury.

Justice Souter: I suppose we ought to let you address this case.

[Laughter]

Mr. Wilson: Thank you.

The... the court did not have squarely before it, until this case, the question of exclusivity, but we believe that the Franklin Mint, Saks, Chan, Floyd, and Zicherman decisions nevertheless issued a... a line of cases which should have directed the lower court to find that the convention is exclusive.

In Franklin Mint, the Court recognized the dual purposes of the convention, which were to create a uniform body of aviation law and to limit the carrier's presumptive liability.

In Saks, the Court broadly defined what constitutes an accident contemplated by article 17 and held that the carrier is liable to a passenger only if the passenger proves there was an accident that was the cause of the injury.

Then in Chan, the Court enforced the limited liability created by the drafters and looked to the parallel notice provisions with respect to baggage and cargo to interpret the notice provision for the passenger tickets.

In Floyd, the Court enforced the article 17 bodily injury requirement holding that the carrier cannot be held liable under 17 unless the accident has caused bodily injury.

In Zicherman, the Court gave the most natural reading of article 24 and held that in an action brought under article 17, article 24 directs the lower court to look to local law to determine the measure of the passenger's recovery and who may bring a suit.

We contend that in this case that the Court once again needs to interpret the convention as a whole and not attempt to divine what article 17 or article 24 means read standing alone.

The carrier has created a clear scheme of liability to... to govern international transportation, and if you read the scheme in terms of the chapter 3 liability, the only sensible reading is that the convention was intended to be exclusive, the passenger was entitled to limited... to limited recovery if the passenger met the conditions under article 17.

Justice Stevens: But is... do I correctly understand that your position is that it does not matter whether this is a case covered by article 17 or not?

All you have to say is something happened during the course of international travel, and that's the end of the ball game unless there's recovery under article 17.

Mr. Wilson: Justice Stevens, I wouldn't agree with that position because I do not view article 17 as determining the scope of the convention.

Article 1 determines the scope.

Article 17 tells when you're going to be liable...

Justice Stevens: No, but article 17 surely is relevant to deciding whether article 24 applies, or do you think it's not relevant?

Because article 24(2) says, in... starts out that in the cases covered by article 17 and so forth.

And I... when I see something like that, I think, well, the first thing I've got to decide is whether or not it's covered by article 17, and I think you're saying it doesn't really make any difference whether it's covered by 17.

Mr. Wilson: Well, I... I don't in the sense that I say covered by 17 means that they concern passenger injury or death cases, not that it concerns whether or not you have a recoverable claim under article 17.

Justice Stevens: Well, I still... I'm still not sure.

Do you think it makes any difference in... to your case whether the case is covered by article 17 or not?

And if so, is it or is it not?

Mr. Wilson: It is a passenger injury case, and therefore it falls under article 17, but the passenger in this instance does not state a recoverable claim under 17.

Justice Stevens: But you haven't answered my question.

Is it covered by article 17 within the meaning of the treaty?

Mr. Wilson: This passenger's claim?

Justice Stevens: This case.

Mr. Wilson: Yes, Your Honor.

Justice Stevens: It is covered by 17.

Mr. Wilson: Yes.

Justice Stevens: I see.

Mr. Wilson: It's covered by 17 because it's a passenger claim.

Justice Kennedy: Are you saying it's covered by 17 because 17 embraces the universe of personal hurt, excluding baggage and delay?

Mr. Wilson: Yes, I do, Your Honor.

Justice Ginsburg: In other words, you're saying...

Justice Kennedy: It covers the universe and... and in this case it is inapplicable, but it has sufficient breadth so that 24 kicks in.

Mr. Wilson: I... I would not agree that it's inapplicable.

I would say the passenger simply cannot meet the conditions that article 17 stipulates.

Justice Stevens: See, the problem I have, this is... I want to get it on the table so you have an opportunity to... is that if you say the universe covered by article 17 is all cases, it's a little tension with the language of article 17 which describes the universe of cases in which the carrier shall be liable.

But you're suggesting article 17 also covers cases in which the... the carrier shall not be liable.

Mr. Wilson: I do suggest that, Your Honor, because I suggest that article 1 is intended to provide for all of international air transportation for passengers for hire, and article 17 I do not believe should have to have a subparagraph 2 saying that unless you meet these conditions... if you don't meet these conditions, you're entitled to sue outside the convention.

I believe that if you read the language fairly, that... and you read that in relation to all the other provisions under article... excuse me... chapter 3...

Justice Stevens: Yes, but the mere fact that article 1 says the convention shall apply doesn't necessarily mean... maybe it did... doesn't necessarily mean it shall preempt every other source of recovery.

It just doesn't... in plain language, it doesn't say that.

Mr. Wilson: I... I believe that it does when you read the... the articles in succession, and I believe that if you... although I... I don't believe you need to refer to the drafting history, if you do refer to the drafting history, I don't... I don't think that you can sensibly read the articles to mean that the... the drafters thought they were leaving a category of cases with respect to passenger injury outside of the convention.

Justice Souter: Well, to make that clear, don't we really look outside the text?

I mean, you can... you can go back to the introductory sentence of article 1.1 and I suppose still theoretically have a question open as to whether, given the applicability of the convention to... to all possible instances here, the convention may still allow, in effect, by reference to outside law, the possibility of... of a claim under domestic law.

And to answer that question definitively, don't we have to look outside the text of the convention and... and consider the... the intentions that were expressed at the time this language was... was proposed and adopted?

For example, the... the statement of the British representative to the Warsaw Convention, that there's no more common law.

Don't we have to look to things like the no more common law statement in order to get to a definitive answer to the question that we have?

Mr. Wilson: I believe that because treaties should be faithfully upheld, that it is appropriate to look to the drafting history in respect of the Warsaw Convention, in particular the Warsaw minutes which were transcribed by Horner and Legrez, and if you read them in total, including the comments of Sir Alfred Dennis and the reporter and various other delegates, it's clear that they were intending it to be all-encompassing with respect to passenger claims.

But I... I do believe that you'd be doing so to confirm the reading, which is that if you read the articles and read the structure in the scheme of the convention, the conclusion should be that the convention is exclusive.

Justice Ginsburg: I'm surprised that you don't put weight on article 24 because I thought it was that article that clarifies that the convention is meant to be exclusive for these categories, personal injury, baggage delay, exclusive of any other actions of tort... whatever it may be.

And you don't get it just from article 17 in the Gestalt of the convention, but you have an exclusivity article written right into the convention.

Mr. Wilson: Justice Ginsburg, I... I do take the position that article 24 is telling the courts that you are not permitted to look outside the convention for causes of action.

I... I believe that 24 has to be read in conjunction with 17 and with 1, and... and the articles all interrelate under chapter 3, including articles 17 and 24, to reach the conclusion that you cannot have a recovery outside the convention.

If there are no further questions, I would like to reserve rebuttal.

Argument of Jonathan E. Nuechtherlein

Chief Justice Rehnquist: Very well, Ms. Wilson.

Mr. Nuechtherlein.

Justice Scalia: Mr. Nuechtherlein, do you know, going to Justice Stevens' question, I think we would have less trouble with article 17 if instead of beginning, the carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident, blah, blah, blah... I think it would be easier to sustain your case if it read instead, in the event, if it began with in the event of the death or wounding of a passenger or any other bodily injury, the carrier shall be liable if.

Because then, you know, the introduction says, in the event of that's the situation covered, in the event of the death or wounding.

Do you happen to know whether the French version of the treaty is structured the same way?

Does it begin, the carrier shall be liable?

Or does it begin, in the event of the death or wounding of a passenger?

Mr. Nuechtherlein: The grammatical structure of article 17 is very similar in the French as in the English.

I think Justice Stevens' question turns on the interpretation of the introductory clause of article 24 which, as Justice Ginsburg points out, is the focus of the exclusivity analysis here.

And Justice Stevens was concerned that because the language in the cases covered by article 17 doesn't explicitly say in all personal injury cases, the convention is not exclusive as to some.

Justice Scalia: That's the core.

Mr. Nuechtherlein: As an initial matter, I should point out the House of Lords also thought that that was in fact the appropriate language to focus on in... in this circumstance and determined, as we believe is correct, that the framers of the convention intended that introductory clause as a shorthand to denote the class of personal injury cases generally as opposed to the class of cases involving damages...

Chief Justice Rehnquist: The introductory clause for which article?

Mr. Nuechtherlein: For article 24.

But I think the more important point...

Justice Kennedy: Do you read article 17 as saying... for purposes of article 24, as saying something like in all cases covered by article 17, excluding or including liability, the provisions of the preceding paragraph apply?

Mr. Nuechtherlein: I think the introductory clause of article 24, even in its original form, was a shorthand denoting all personal injury cases.

But from the Government's perspective, the more important point is this.

Last week the United States ratified Montreal Protocol No. 4.

Justice Kennedy: Well, we're aware of that, but just I want to be quite sure of your interpretation of the first phrase of paragraph... subparagraph 2 of article 24.

In the cases covered by article 17, what... what does that mean?

Mr. Nuechtherlein: That means in the class of cases to which article 17 is addressed, which is personal injury cases.

Justice Kennedy: Whether or not liability...

Mr. Nuechtherlein: Exactly.

Justice Kennedy: exists.

Mr. Nuechtherlein: The premise of this is that if the... if a passenger cannot satisfy the conditions of liability under article 17, that passenger should not, for that very reason alone, be able to disqualify the carrier from invoking the limits of the... of the convention.

Justice Scalia: How many smart people from how many countries came up with this... with this formulation?

[Laughter]

You think they...

Mr. Nuechtherlein: Well...

Justice Scalia: could have said it more clearly.

Mr. Nuechtherlein: Again, I think it's very relevant that in Montreal Protocol No. 4, smart people from a lot of countries got together and decided to clarify the language that is in article 24.

As amended by Montreal Protocol No. 4, which is about to go into effect in the United States, the introductory clause that we've all been focusing on in article 24 no longer says, in the cases covered by article 17.

It now says, in the... in the carriage of passengers and baggage.

Justice Scalia: It makes perfect sense.

Now the question is whether they did that in order to change what the original treaty said or in order to correct or to make more clear what the original treaty said.

How do we know that it was in order to make it more clear?

Mr. Nuechtherlein: Well, the... there... there is no indication in the proceedings that led up to the change in language that anyone contemplated that this would make any difference in the exclusivity analysis.

And as we point out, even under the original language of article 24, the House of Lords was correct in interpreting the introductory clause as meaning precisely what... the significance that we give it, which is that in personal injury cases, if you cannot satisfy the important conditions for liability set out in article 17, then you may not use your very failure to satisfy those conditions as a basis for seeking unlimited liability under local law without regard to the convention.

Justice Stevens: But is it correct that the conditions for liability under 17, as you view the treaty, are simply physical harm and being in the course of international travel?

There's no fault requirement, or is there a fault requirement?

Mr. Nuechtherlein: Under the convention there is not a fault requirement.

Justice Stevens: So, the only conditions you're talking about is somebody got hurt while he was on an airplane... in international travel.

Mr. Nuechtherlein: If there was an accident, and that is also an important requirement.

In Saks, this point... this Court pointed out that the framers of the convention deemed it essential to confine the class of cases in which passengers can recover for injuries incurred within the scope of the convention to cases in which there was an... there was an unexpected or unusual event that was external to the passenger.

The framers did not want to create a liability for cases where, for example, someone has a peculiar medical reaction to the ordinary circumstances of air travel.

Under the court of appeals' reading of this convention, it is precisely a passenger's failure to satisfy that important threshold requirement for recovery under the convention that entitles the passenger to escape the convention scheme of limited liability and sue for potentially unlimited liability under local law without regards to the convention.

In our view, that would be very anomalous.

The... the court of appeals' reasoning would also appear to apply in cases where a passenger suffered purely psychological injuries as opposed to physical injuries.

Again, in Floyd, this Court determined that the framers of the convention meant to... to withhold liability in cases where a passenger could claim only psychological injury.

To hold, as the court of appeals did, that a failure to satisfy article 17's liability conditions takes you outside the scope of the convention creates the following anomaly.

It would mean that if you were a passenger on an airplane who was merely traumatized when the airplane drops suddenly 2,000 feet in altitude, you could sue potentially for unlimited liability without regard to the convention.

Whereas, another passenger on the same airplane could... if that passenger also bumped her head, in addition to being traumatized, would be confined by... by the convention's liability caps, and that result we suggest would make very little sense.

Justice Breyer: Do you have any... I couldn't find anywhere... I'll get it, but I haven't read it yet.

The House of Lords says that if you look at the language of this, there... you just can't apply it literally.

I mean, you lose if you apply it literally.

You have to really look beyond that language and say does it forbid an interpretation that is required, says the House of Lords, by looking at the treaty as a whole.

So, I don't find in one of these briefs, anywhere in an appendix, the treaty as a whole, which isn't that long.

So, I don't know yet.

I'll have to get it.

It would have been simpler, since that's their reasoning, if I could have somewhere looked at the treaty as a whole.

Am I right?

Maybe hidden...

Mr. Nuechtherlein: Well, the treaty as a whole is reproduced in the United States Code, and petitioner has reproduced the most important provisions...

Justice Breyer: But if you look at just provision by provision, you lose, don't you?

Mr. Nuechtherlein: I...

Justice Breyer: I mean, 17 says... we're talking about instances where the carrier is liable for a... for physical injury.

And then 24 says, in cases that are foreseen by... if you want to be loose about it, that's fair enough... in cases foreseen by article 17, et cetera.

And in cases foreseen, well, or covered, however you want to put it, those seem to be cases of injury, physical injury.

Now... now, to get out of that, there must be some flavor for the statute as a whole or something, or the treatise as a... the treaty as a whole.

Mr. Nuechtherlein: To begin with, Justice Breyer, I do not think the House of Lords viewed the text as going the other way.

I think the House of Lords viewed that particular phrase as ambiguous, and that ambiguity we would point out is resolved, at least prospectively, by Montreal Protocol No. 4, which again I believe establishes the sense of the international community as to what the original language meant.

The framers...

Justice Breyer: I thought... what I was thinking of is the exact words.

He says, in my opinion, says the judge, the answer to this question is to be found not by an exact analysis of the particular words used, but by a consideration of the whole purpose of the article.

And then he spent three pages trying to set out the treaty and how you look at the whole thing and then you understand that what 17 is talking about is personal injury cases.

Period.

Mr. Nuechtherlein: I think the House of Lords recognized that it would, in fact, be anomalous to allow passengers to disqualify carriers from invoking the...

Justice Breyer: It would be.

It would be.

That's right.

Mr. Nuechtherlein: Yes.

Justice Breyer: But we have some language.

Mr. Nuechtherlein: And I think the House of Lords also recognized that that language was not dispositive because it was ambiguous and you do, in fact, need to look at the drafting history and the convention as a whole.

But I do not think the House of Lords viewed that language as pointing in the opposite direction...

Justice O'Connor: Are there any other cases from other jurisdictions of member nations to the Warsaw Convention that we can look to besides Abnett from the House of Lords?

Mr. Nuechtherlein: To my knowledge, Abnett is the only decision of the highest court of a sister signatory.

Justice Souter: I take it then you... you disagree with your fellow counsel here that the language of the... of the convention requires your result.

I take it your position is that the language of the convention is ambiguous, but if you take into consideration anomaly, drafting history, and so on, your result is the... is the... is the reasonable result.

Mr. Nuechtherlein: I do not think that the convention read as a whole is ambiguous.

I think the introductory clause of article 24, which was amended by Montreal Protocol No. 4 to reveal its original intent, could be construed as ambiguous.

Argument of Robert H. Silk

Chief Justice Rehnquist: Thank you, Mr. Nuechtherlein.

Mr. Silk, we'll hear from you.

Mr. Silk: Mr. Chief Justice, may it please the Court:

Montreal No. 4 was enacted 5 or 6 years after this incident occurred.

Montreal No. 4 is prospective, as the Solicitor General pointed out in his brief.

Montreal number...

Justice Ginsburg: But Mr. Silk, in the Senate report on what the... what our Senate voted on, it says in the... in the article-by-article explanation of Montreal 4, it says, article 24 clarifies that any action for damages, whether based on the convention or in contract or in tort or otherwise, can only be brought subject to the conditions and limits set out in the convention.

That's this August, a Senate report saying that this change is merely clarifying.

Mr. Silk: Well, the Senate report may have said that, but the Senate report was not in effect at the time this particular incident occurred.

Justice Scalia: I guess your position is the treaty meant what it meant, and the Senate...

Mr. Silk: My position...

Justice Scalia: cannot, by later saying it meant something else, cause it to have meant something else.

It either meant that or it didn't mean that.

Mr. Silk: Exactly.

Justice Scalia: It seems reasonable to me.

Mr. Silk: My... my contention is that the treaty says... means what it says, and what it means is that article 1, which defines the scope and the breadth of the convention as dealing with international air transportation, does not preclude or preempt anything, that article 20... if it did preempt everything, then article 24 would be unnecessary.

Article 24 is the only preemption or the only exclusive provision for convention exclusivity that there is, and article 24, as applicable in this situation, refers only... in personal injury cases, refers only to cases covered by article 17.

Justice Scalia: But you must admit it produces results that make the whole treaty seem quite pointless.

I mean, the whole purpose of the treaty was to come to some common agreement as to the liability of carriers, and the... and the agreement that you say they signed says that in the event of personal injuries in the narrow situation where it's caused by an accident and there is physical injury, you can sue under the convention and you're limited, and in all other situations, you're remanded to whatever the local law is so that there will be innumerable divergent judgments in all sorts of different jurisdictions.

Mr. Silk: Article 24 preempts only accident cases.

This was not an accident case.

This was not a case in which...

Justice Scalia: So, your answer is yes, that's... that's a result and too bad.

But, you know, I'm not inclined to interpret it that way if I'm dealing with... with a phrase that is... is merely ambiguous, in the cases covered by article 17.

Does that mean in the cases in which article 17 gives relief, or does it mean in... in the cases... in the cases in which... which article 17 addresses?

Mr. Silk: I think the cases in which article 17 addresses.

And the cases which article 17 addresses are cases which are resulting from accidents.

It's so stated very explicitly in article 17.

Counsel, I believe, has admitted in response to Your Honor's question that she is... agrees that this case does not involve an accident.

This case does not involve an accident.

That's also assumed by the questions presented for review.

Justice Scalia: Well, sure, but why can't I say that article 17... what it addresses is damage sustained in the event of death or wounding of a passenger or any other bodily injury suffered by a passenger?

That, it seems to me, is the general subject of 17.

Mr. Silk: Except that's only true if the accident that caused the damage took place on board an aircraft in the course and so on.

Justice Scalia: That's necessary for liability, to be sure.

Mr. Silk: But that's... that's... that's... that modifies the entire first sentence and first clause of article 17 because the first clause says that it shall be liable for damages sustained for bodily injury if the accident which caused the damage.

So, the existence of an accident is critical under the Saks case, and under... under... under all of these cases, it's a critical element.

Justice Breyer: So, do you lose if I think there was an accident?

Mr. Silk: There was no accident.

Justice Breyer: I know that's your opinion, and... and this is disputed.

But if I thought that there... this is an accident, that accidents refer to intentional torts as well, then do I have to decide against you in your opinion?

Mr. Silk: I... I believe that if this was an accident, if this was an accident, which would be contrary to all...

Justice Breyer: I know you don't agree with that.

Mr. Silk: to the meaning of an accident, if this was an accident, that's true.

We would not... would not be in court.

Justice Ginsburg: So, you would not be arguing...

Justice Kennedy: Because there was no physical injury.

Mr. Silk: Yes, there was no physical injury.

That's correct.

Justice Ginsburg: Because the... article 17 requires accident plus bodily injury.

So, you're not making the argument... you wouldn't be making the argument that even if this were an accident, it's still subject to State law because there's no bodily injury.

Bodily injury is all that the convention covers.

Mr. Silk: Well, I would agree that if this was an accident and not an intentional tort, that the article 17 would apply and article 24 would apply, and it would preclude the accident... anything from happening because of Floyd because the fact that the injuries were psychic and were not bodily injuries, if this was an accident.

Justice Stevens: Mr. Silk, does that mean that your... your... I'm just trying to think this thing through... response to Justice Scalia about the anomaly is that there is total preemption of State law causes of action in accident cases that do not result in physical harm?

Mr. Silk: Yes.

Justice Stevens: So, there would be... a category of common law causes of action would be... would be preempted by the treaty.

Mr. Silk: Oh, yes.

Justice Stevens: Even though there's no recovery in those cases.

Mr. Silk: Oh, yes, I would certainly agree with that.

But the critical question is the one that was decided by the Second Circuit that this was not an accident.

And the Second Circuit based its decision on... on the... on the Saks case principally and on all of the cases...

Justice Scalia: Why do you... why do you insist that only the necessity of an accident is part of the... of the limitation in 17?

Why not also death, wounding, or other bodily injury?

I mean, isn't that a condition just as much as the existence of an... of an accident?

Mr. Silk: It's only a condition if it's an accident caused it.

Justice Scalia: Well, I can...

Mr. Silk: And that's what it says in article 17.

Justice Scalia: I can also say the... the... the accident is only a condition if... if there's death or... death or wounding or any other bodily injury.

I mean, they're... they're parallel conditions, it seems to me.

Mr. Silk: Well, if that was intended to be the case, then the convention would have been written in a different way.

Article 17 was not written that way.

Article 17 predicated liability for death or wounding or bodily injury only if there was an accident.

Justice Scalia: That's right, but it also... it also only predicated liability for death or wounding or other bodily injury.

So, you could say it's only limited to that too.

So, if it isn't death, wounding, or bodily injury, if it's just... just psychic injury, even in the event of an accident, you can sue under State law.

Mr. Silk: Well, I believe that the convention intended to include only accidents in article 17 and intended to include everything else under article 18, which is exactly what the Saks case said, and it's exactly what the Solicitor General argued in the Saks case in the Solicitor General's brief amicus.

And the brief amicus of the Solicitor General, which I would recommend to this Court as a good text for this subject matter... in the Solicitor General's brief they emphasized the importance and the critical necessity that there first be an accident, and an accident is defined as something which is unforeseen, which is...

Chief Justice Rehnquist: Where is accident defined in... in the treaty, Mr. Silk?

Mr. Silk: Accident... accident is not defined in the treaty, but accident is defined in the treaty, if you look at the French, which means... which is the original language of the treaty, and they use the word l'accident or... I don't know if I'm pronouncing it right.

Chief Justice Rehnquist: Well, neither do I.

[Laughter]

Justice Scalia: Close enough.

Mr. Silk: And... and I'll give you another one.

They... they use the word l'evenement, which means an... an incident or an occurrence, in article 18.

An incident or occurrence could include an intentional wrong, but an accident excludes an intentional wrong.

And therefore intentional wrongs were not intended to be covered by article 17, and therefore...

Justice Scalia: You know, I... I wish... I... I want to join... was it Justice Breyer who complained about the fact that both sides are arguing all different sections of the treaty, and the only ones that are reproduced in the materials we have in front of us are 1, 17, and 24.

I don't know why they... it's not that long a treaty.

The whole thing could have been reproduced so that we could have seen it in its... in its entirety.

I really... sure, it's in the United States Code.

I don't have the United States Code at home when I'm reading the briefs.

I assume that all of the essential materials are going to be in front of us.

Mr. Silk: Well, I... I...

Justice Scalia: We're talking about 18.

We're talking about a lot of other provisions, and I... you know, that's very interesting.

Where do I look them up?

Justice Souter: But on the other hand, you benefit somewhat...

Mr. Silk: Article 17 is in... is in the petitioner's supplemental brief.

Article... article 24 is in the petitioner's supplemental brief.

Justice Scalia: Oh.

1, 17, and 24 are in the petitioner's brief.

Mr. Silk: Right.

Justice Scalia: At the beginning, and 18 is somewhere.

I'm not sure where it is, but...

Justice Kennedy: You agree that an important class of... of injuries, of torts, are excluded by this treaty and that there can be no State cause of action.

What would be the purpose of a treaty under your interpretation if this really relatively less consequential kind of tort was... was not also excluded?

How do you respond, in other words, to Lord Hope's opinion that the whole structure of the treaty dictates a holding against you?

Mr. Silk: Because I see nothing in the structure of the treaty that says that the... that a... that would indicate that a willful tort, an assault and battery and a false imprisonment, committed by an airline against a passenger is something which is inconsequential or which could be included or excluded.

It doesn't even touch the subject.

There is not a word in the convention that I know of which speaks of the type of tort and the type of willful wrongdoing which occurred in this case.

Now, article 1 says that the convention covers the whole area of space, but it... it preempts nothing.

Chief Justice Rehnquist: Article 25.

Mr. Silk: Article 25, but article 25 is good for the respondent in this case.

Chief Justice Rehnquist: You said that nothing in the convention covered...

Mr. Silk: I will withdraw.

You're right, Your Honor.

The only place in the convention where willful wrongs are... such as the kind which occurred in this case is mentioned is article 25.

Article 25 doesn't give a right to a cause of action but it says nothing in the convention shall restrict and prevent a cause of action.

Justice O'Connor: But I thought, as the case came to us, we had to assume that article 25 isn't before us, that we take the case as though it isn't willful misconduct under article 25.

Am I wrong?

Mr. Silk: As the case came before this Court, the petitioner did not mention article 25 in the petition.

That's correct.

And in opposition to the petition, there was particularly no reason to address article 25...

Justice O'Connor: Well, and there was a finding below that it wasn't willful misconduct?

Mr. Silk: No.

The finding below was that it was not such willful misconduct... such willful misconduct as to come in under article 25, which is a conclusion of law.

This is not a statement of fact, and this is not a fact-finding...

Justice O'Connor: Okay, but there was no cross-petition on that.

Mr. Silk: We weren't aggrieved.

The... the respondent was not aggrieved at all by the final ruling, and there was really no need to... to burden this Court with a cross-petition on an academic subject.

Justice Kennedy: Well... well, but as the case comes to us, willful misconduct is definitely excluded by the treaty.

Serious accidents are sometimes limited because of 17 and... and Saks and Floyd.

But you have this narrow class of cases which you say is not... is not covered by the treaty.

Mr. Silk: Well, willful misconduct...

Justice Kennedy: And it seems to me that that's inconsistent with the whole design of the treaty to limit the liability.

Mr. Silk: Willful misconduct is covered by the convention only to the extent that nothing in the convention shall limit or exclude... exclude such a case.

Justice Kennedy: But that isn't this case.

Mr. Silk: Well, we're talking about excluding such a case, and if there's nothing in the convention to exclude my case, then I go ahead.

Justice Breyer: Yes, but...

Mr. Silk: Article 25 is fine.

Justice Breyer: Let me ask you about... because I've now seen the whole treaty, as Justice Thomas had the... if you look at the treaty as a whole... and I think this is what the English court was doing... it's saying, look, there's one section here, section 3, which says, airlines, you cannot limit your liability in a contract and you give that up.

And then section 4 says, but in return for that, you're going to be liable in the following ways, and then it lists a whole bunch of them with qualifications.

And in that context, all that article 24 meant was it meant to refer to the three kinds of liabilities or situations you may have, to people, to luggage, and for delay.

Mr. Silk: Yes.

Justice Breyer: And that's all it meant.

And if you don't read it that way, you get into a terrible mess.

You get into the mess, for example, that a flight attendant who hits somebody in the face and she says it was an accident or the... the passenger says, no, no, she did it on purpose, or... or you have somebody suing in a State court because the air that's recirculated has germs in it and they know that the germs will, in fact, give colds to a certain percentage of people, or they serve coffee that's too hot and they know that a certain percentage of people are going to get sore throats because the coffee is too hot.

I mean, there could be millions of cases, and you're very... you know, the bar is very imaginative, and they'll find terrific cases.

[Laughter]

And so our choice is you either read it vaguely to just refer to passengers, luggage, and delay, or you read it precisely by the language and we get into the situation with your case and many such others are allowed.

But the English court says, that's the choice.

We think really the language isn't perfect, but you... they took that choice.

So, now, what is your... your... your response?

Mr. Silk: My view on the Abnett case, or the English case, the House of Lords case, is that the House of Lords case did not deal with the kind of willful problem that we have in my case.

The House of Lords was dealing with a situation which was completely accidental to the airline and it was... it was a breach of contract of passage or negligence in landing in Kuwait at the time that the plane did land in Kuwait, but it did not deal at all with the kind of common law tort... willful torts, that we have in this case.

It just wasn't dealing with it.

So, the English court can go ahead and say whatever it wants with respect to the kind of cases that they were dealing with, but the fact problem before that court is totally different from the fact problem before this Court.

Justice O'Connor: Oh, but there's no doubt at all in reading that opinion that, faced with this case, they would have come out the same way.

There's... I mean, that's how they construed the treaty is to be an overall... overarching purpose to govern exclusively liability of international air.

Mr. Silk: My only answer to that would be that the treaty governs what it governs, and the treaty... the language of the treaty spells out what it does govern.

It's true that the treaty could govern an intentional wrongdoing such as we have in my case, but it doesn't.

It uses the word accident deliberately and it uses the word event or occurrence in article 18 in a deliberate way as this Court pointed out in the Saks case.

I do not see anything in the treaty which anywhere near... comes near to governing this case.

It's certainly not an accident.

The very question before this Court right now, which... upon which the Court granted certiorari, the very question is assuming this is not an accident, if it's not an accident, then is it covered?

So, we can't assume that it's covered in any way by article 17.

Justice Ginsburg: That was the same assumption that the House of Lords made, and I think that they felt a certain discomfort in that too because they said, we have to take this case on the basis that it was no accident.

It wasn't an accident, and so then what follows?

You keep characterizing this as an intentional tort and clearly not an accident, and yet not only... was it Judge Gleason?

There was another earlier case involving a misfired security check, and district judges said, yes, that sounds like an accident to us.

They went through their routine security procedure.

They... it misfired in this case.

The profile indicated the wrong person.

Why is it so clear that that isn't an accident, that picking... going through the normal procedures but having the procedure misfire isn't an accident?

Mr. Silk: But this procedure in my case did not misfire.

The procedure in my case went precisely the way it was intended.

It was a routine.

It was intended.

It was a security check.

And I will say that the airline had a right to conduct the security check.

They had a right to do it, but they didn't have a right to do it without the consent of my client.

And without the consent of my client, just as a doctor has a right to perform surgery, he doesn't have a right to do it without the consent of his patient, the airline here did not have a right to conduct a security check without the consent of my client.

If my client didn't want to consent, then my client would have been barred from boarding the plane by the Federal regulations.

Justice Ginsburg: Is that a fact question?

Does the airline dispute that?

Mr. Silk: No.

The airline does not dispute anything at all.

The issues in this case are free of factual problems or factual complications.

The airline does not dispute it.

The... in... in my... in the respondent's brief, in the statement of the case, it was pointed out... the testimony was even gone through, I believe, verbatim as part of the... of the statement of... of the case.

And it pointed out that my client didn't consent.

She wasn't asked to consent.

She was overwhelmed and so on by the authority which was exhibited by the security people, and they didn't ask her consent.

The Federal regulation says that if she doesn't consent, then she cannot board the plane.

All the security problems are taken care of.

Justice Ginsburg: I thought that would be kind of something to which the airline would demur in the district court because the airline's case in the district court was, no bodily injury, end of case.

Mr. Silk: They didn't.

They had factual testimony and their factual testimony was to the effect that what they did in her case was part of their routine and...

Justice Ginsburg: Was there a trial in this case?

Mr. Silk: Was there what?

Justice Ginsburg: A trial.

Mr. Silk: Yes, there was a trial in this case.

There was a trial in this case before Judge Stanton in the Federal District Court in the Southern District of New York.

And in that trial, the liability issues were proved and part of the damage issues were proved, that is, to the extent that my client testified to the suffering and to the...

Justice Ginsburg: When you said proved, were there findings of fact?

Mr. Silk: No, no.

When I say proved, I mean prima facie proof.

There was testimony.

There was testimony concerning all of these things, cross examination, testimony, cross examination.

El Al put on witnesses, and... and the judge said... I think he said, do you have anything else, and I said, yes, I have psychiatric testimony to put on to show psychiatric injury and causal relationship and so on and so forth.

And the trial judge said, you don't need to do it because if the only problem is psychic, it's being dismissed under Floyd.

And I said, but... and I argued there that... that this was not an accident and Floyd applies only to accidents under article 17, and the judge said, yes, it was an accident because she turned out not to be a terrorist.

So, what the judge did was saying because she was innocent, she therefore cannot prevail because that was an accident that she was examined like that.

Justice Souter: I thought Judge... the... I'm not sure of this factual thing.

That's what I want.

El Al says, look, she didn't object to the search and she never asked to leave the room, and anybody would know that if you want to go home, you go home.

It's only if you want to go on the flight that you have to be searched.

So, that's their position.

Mr. Silk: Yes.

Justice Souter: And I take it your position was that they had a legal duty to say to her, now, if you object to the search, you can go and leave the room.

Mr. Silk: Yes.

Justice Souter: Is that... was that...

Mr. Silk: Yes.

Justice Souter: And is there a finding on whether... I guess that's a legal question.

Mr. Silk: There was no finding.

Justice Souter: There's no finding.

Mr. Silk: There was no finding at all.

Justice Souter: So, is that relevant at all to us?

I mean, what are we supposed to take?

I... I... we have to take that she never objected to the search.

We have to take that she never asked to leave the room.

We have to take that they didn't tell her she could object to the search, and then where are we?

What are we supposed to do?

Mr. Silk: Well, I think that that is not the question before this Court.

I think that that is not the question before this Court.

And I just want to say that that question was not raised really in the petition for certiorari and is not a question before this Court.

In the Phillips case, which this Court recently decided, I believe the Phillips court said that... this Court said that only questions set forth in the petition...

Justice Souter: I agree with you.

I agree with you on that.

Mr. Silk: may properly be used.

Justice Souter: It's irrelevant.

Mr. Silk: It's only relevant when... when I think they raised the red flag that this involves a security problem and... and they have to be able to protect their security, which I think is... is sham argument because they could easily have protected their security by giving her a choice.

Justice Ginsburg: Mr. Silk, on the question Justice O'Connor asked earlier in the argument, is there any precedent from other... another court other than the House of Lords that interprets article 17 in context of article 24 in context of the whole treaty?

Mr. Silk: Justice Ginsburg, I have tried to find any other precedents.

I don't think the House of Lords precedent is a precedent because I don't believe that it deals with...

Justice Ginsburg: Just let me amend the word to be decisions, court decisions.

Mr. Silk: I know of none which involve this kind of situation.

And I... I... in security checks or in any other... in any other context where an assault and battery or a false imprisonment was the subject of the action, of a common law action, and the question of the convention arose.

Justice O'Connor: There was a New Zealand case...

Mr. Silk: I just didn't know...

Justice O'Connor: was there not, but it involved goods not a passenger, and the New Zealand case took the same position as the House of Lords?

Mr. Silk: I don't know.

Justice O'Connor: I think so.

Mr. Silk: I just don't know.

Incidentally, if the New Zealand case would... would involve baggage and not passengers, security, then 24(1) and not 24(2) would apply, and 24(1) does not refer to... under article 17.

It refers to article 18...

Justice O'Connor: No, but the question was the exclusivity of the treaty.

And I think there was also a case from Singapore.

Mr. Silk: But article...

Justice Scalia: 24(1) uses the same critical phrase, in the cases covered by, in the English version.

Mr. Silk: Right, but by article 18 and 19.

Justice Scalia: Right, but the same issue would arise.

Does in the cases covered by mean in those cases where there is liability under or does it mean in the universe of situations envisioned by?

And these cases, as Justice O'Connor suggests, say that it means the latter.

Mr. Silk: I... I would like to suggest, if I may, that article 17 is a liability provision.

It is dealing with liability.

Its whole focus is liability.

Its focus is not just passengers.

Its focus is liability.

Justice Scalia: What about 18?

Does 18 begin the same way, the carrier shall be liable for damage, or does it begin differently?

We don't know.

Mr. Silk: Article...

Justice Scalia: It's in the United States Code, I guess, somewhere.

[Laughter]

Mr. Silk: Article 18...

Chief Justice Rehnquist: Yes, yes.

Mr. Silk: I believe it does then, overhearing counsel here saying yes, so it probably does.

Justice Kennedy: Well, it does but the difference in 17 and 18 is 18 doesn't refer to an accident.

Mr. Silk: It refers to an occurrence.

Justice Kennedy: Yes.

Mr. Silk: And it's much broader, and it would include... if that word were used in article 17...

Justice Kennedy: Which, it seems to me, helps you.

Mr. Silk: If that word were included in article 17, it would... it would hurt me because article 17 would be... would... would say that... that... if it was an occurrence, it would fall under article 17, and if it fell under article... if article 17 used the word occurrence, this event would have fallen under article 17.

And therefore it would have been precluded by article 24 too.

It would have been precluded.

But article 17 does...

Justice Kennedy: Right.

Mr. Silk: not say occurrence, and that is very helpful...

Justice Kennedy: Which is what helps you.

Mr. Silk: That helps me, right.

And the Saks case points out the very important difference of language between article 17 and article 18, and in Saks and also... not only in Saks, but the Solicitor General and the Solicitor General's brief amicus in the Saks case.

It writes practically a textbook on this subject in which he points out the difference between the usage of... of the word for occurrence in article 18, the French word for occurrence in article 18, and the French word for accident in Article 17.

They make a world of difference.

Justice Ginsburg: Mr. Silk, you started your argument by saying the Montreal Protocol is prospective.

Mr. Silk: Yes.

Justice Ginsburg: Do you think it changes anything with respect to a case like yours?

Mr. Silk: Well, it would change it if my case had occurred 6 years after it occurred and Montreal Protocol No. 4 was in effect at the time.

Justice Ginsburg: Suppose we had a case identical to yours that happens today.

What is the result?

Mr. Silk: Well, if it happened after Montreal 4 became effective...

Justice Ginsburg: Yes.

Mr. Silk: which would be in a few months, I think...

Justice Ginsburg: Yes.

Mr. Silk: I mean, if that's what Your Honor means.

Justice Ginsburg: Yes.

Mr. Silk: Okay.

My case would be out the window, I think.

Justice Ginsburg: Thank you.

Mr. Silk: But my case cannot be out the window because Montreal 4 is prospective and it's not retroactive, and has practically been conceded by everybody, nobody has really claimed that it's retroactive.

Justice Ginsburg: The question is whether it's something new or whether it's clarifying.

Mr. Silk: Well, it's clearly new because in article 24 as it was, it says, in cases covered by article 17.

Now, article 24 under the Montreal Protocol says, in the carriage of passengers and baggage, any action for damage, however founded, can only be brought subject to the conditions of this... of this convention.

And the words under article... covered by article 17 are completely out.

Justice Ginsburg: So, for the future, there's no problem.

So, you're... you're saying that your case is one of these prior law cases and there are too many of them.

Is that your view?

Mr. Silk: I don't know of any of them.

Justice Scalia: We should just leave them alone and stop worrying about it all.

Right?

Justice Kennedy: Did I understand that your...

[Laughter]

Did I understand you to suggest that the Government's position in its brief in Saks is inconsistent or at least in tension with what it's arguing here?

Mr. Silk: I... I believe so because the Government in this case has been arguing that this is some kind of an accident, and accident can be broadly interpreted.

They have done so in their brief.

The word accident can be very broadly interpreted to include a multitude of sins, whereas in the... in the brief in the... in the Saks case, they very... they say accident is very narrow.

And I'm answering your question, but...

Chief Justice Rehnquist: Yes, but I think you've... you've answered it.

Mr. Silk: All right.

Chief Justice Rehnquist: Thank you, Mr. Silk.

Mr. Silk: Thank you, Your Honor.

Thank you.

Thank you.

Rebuttal of Diane W. Wilson

Chief Justice Rehnquist: Ms. Wilson, you have a little more than a minute remaining.

Mr. Wilson: Your Honors, I would just like to make two brief points.

One is that the court below specifically found that there was no willful misconduct in this case, and that's referenced at page 27 of the appendix to the petition.

And also that accident can encompass intentional torts.

That's what article 25 can look to.

It is only if you have willful misconduct that you get an unlimited recovery.

Accident wasn't ever meant to mean unintended.

I also would note that you should meet the terms and conditions of article 25.

You have to meet the terms and conditions of article 24.

There is a symmetry there.

And with respect to the issue of article 18, I believe that the fact that the liability is broader in scope with respect to baggage and cargo should not mean that if... where you have a narrower scope of liability under the convention, you then get to get recovery outside of the convention.

Thank you.

Chief Justice Rehnquist: Thank you, Ms. Wilson.

The case is submitted.