Doe v. Etihad Airways, P.J.S.C. , 2017 FED App. 0201P ( 2017 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0201p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JANE DOE; JOHN DOE, husband and wife, ┐
Plaintiffs-Appellants, │
│
> No. 16-1042
v. │
│
│
ETIHAD AIRWAYS, P.J.S.C., │
Defendant-Appellee. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Ann Arbor.
No. 5:13-cv-14358—John Corbett O’Meara, District Judge.
Argued: October 19, 2016
Decided and Filed: August 30, 2017
Before: BOGGS, SUHRHEINRICH, and McKEAGUE, Circuit Judges.
_________________
COUNSEL
ARGUED: Mark Kelley Schwartz, DRIGGERS, SCHULTZ & HERBST, P.C., Troy,
Michigan, for Appellants. Andrew J. Harakas, CLYDE & CO US LLP, New York, New York,
for Appellee. ON BRIEF: Mark Kelley Schwartz, DRIGGERS, SCHULTZ & HERBST, P.C.,
Troy, Michigan, for Appellants. Andrew J. Harakas, Daniel E. Correll, CLYDE & CO US LLP,
New York, New York, Scott R. Torpey, JAFFE RAITT HEUER & WEISS, Southfield,
Michigan, for Appellee.
_________________
OPINION
_________________
BOGGS, Circuit Judge. Plaintiff Jane Doe and her eleven-year-old daughter flew aboard
Etihad Airways from Abu Dhabi to Chicago. For the duration of the fourteen-hour journey,
No. 16-1042 Doe, et al. v. Etihad Airways Page 2
Doe’s tray table remained open in her lap because a knob that was meant to hold it in place had
fallen to the floor. During the flight, Doe’s daughter found the knob on the floor and gave it to
Doe, who placed it in a seatback pocket. When it came time to descend, an Etihad flight
attendant (unaware of the detached knob) gave Doe the familiar reminder to place her tray table
in the upright and locked position for landing. Doe, of course, could not comply. To aid in
explaining her problem, she reached into the seatback pocket to retrieve the fallen knob. But
when she stuck her hand into the pocket, she was unexpectedly pricked by a hypodermic needle
that lay hidden within. She gasped, and the needle drew blood from her finger.
Doe claims damages from Etihad for both her physical injury and her “mental distress,
shock, mortification, sickness and illness, outrage and embarrassment from natural sequela of
possible exposure to” various diseases. Her husband claims loss of consortium. The Montreal
Convention of 1999, an international treaty under which these claims arise, imposes strict
liability (up to a monetary cap) upon Etihad “for damage sustained in case of death or bodily
injury of a passenger upon condition only that the accident which caused the death or injury took
place on board the aircraft.” Etihad concedes that an accident onboard its aircraft caused Doe to
suffer a bodily injury. But Etihad argues that “damage sustained in case of . . . bodily injury”
means only “damage caused by bodily injury,” and thus does not include Doe’s fear of contagion
and other emotional-distress and mental-anguish damages—damages that Etihad claims were
caused not by Doe’s bodily injury (the small hole in her finger) but by the nature of the
instrumentality of that injury (the needle). The district court agreed and granted partial summary
judgment for Etihad. But the district court erred both in reading the additional “caused by”
requirement into the treaty and in concluding that Doe’s bodily injury didn’t cause her emotional
and mental injuries. The plain text of the Montreal Convention allows Doe to recover all her
“damage sustained” from the incident, which includes damages for both physical injury and
accompanying emotional or mental harm. So, for the reasons that follow, we reverse and
remand.
I
When Doe was pricked by the needle, the passenger seated in the aisle seat to her right
heard Doe exclaim, “ouch,” and saw her finger bleeding. The Etihad flight attendant who had
No. 16-1042 Doe, et al. v. Etihad Airways Page 3
come to Doe’s seat picked up the needle and what was later determined to be its accompanying
insulin syringe, both of which Doe had placed on her tray table. But the flight attendant then
returned the items to the tray table and left to summon the assistance of her supervisor. Because
the airplane had begun its descent, the flight attendants did not have access to the flight deck,
which was where the only onboard sharps box was located, nor were the flight attendants
permitted to call the flight deck absent a more pressing emergency.
The flight attendant returned with her supervisor. The flight attendant took the needle
and syringe, placed them in an empty water bottle, capped the bottle, and later turned the bottle
over to her cabin manager. The supervisor, meanwhile, gave Doe an antiseptic wipe, which Doe
used to wipe her finger, and a Band-Aid, which the supervisor himself wrapped around her
finger. The cabin manager wrote a report of the incident and told Doe that Etihad would contact
her. A flight attendant recommended that Doe see a doctor, but Etihad provided no medical
assistance other than the antiseptic wipe and Band-Aid.
The next day, Doe saw a family physician, who noted a “small needle poke” on Doe’s
finger. Doe was prescribed medication for possible exposure to hepatitis, tetanus, and HIV, and
she underwent several rounds of testing over the following year. Thankfully for Doe, all the tests
came back negative. Nevertheless, Doe claims that she refrained from sexual intercourse with
her husband and from sharing food with her daughter until one year after the incident, when her
doctor told her that she could be certain that she had not contracted a disease from the
needlestick.
Two days after the flight, Doe sent an email to Etihad to follow up because Etihad had
neither sent her a copy of the incident report nor offered her any further assistance. One week
later, Etihad replied by email to offer a “purely goodwill gesture” of “possible reimbursement”
of Doe’s medical expenses, “without any admission of liability.” This litigation followed.
No. 16-1042 Doe, et al. v. Etihad Airways Page 4
II
Plaintiffs filed suit against Etihad in the United States District Court for the Eastern
District of Michigan.1 Etihad, an entity wholly owned by the Government of Abu Dhabi, United
Arab Emirates, is a “foreign state” within the meaning of the Foreign Sovereign Immunities Act,
28 U.S.C. § 1603(a). But as a condition of Etihad’s Foreign Air Carrier Permit—issued by the
United States Department of Transportation to permit Etihad to fly to United States airports—
Etihad waived sovereign immunity from suit in United States courts and could thus be sued “in
any judicial district in which [Etihad] is licensed to do business or is doing business,” which
includes the Eastern District of Michigan because of Etihad’s codeshare and other business
agreements with airlines operating from points within that district. 28 U.S.C. § 1391(f); see
49 U.S.C. § 41301.2
Following discovery, Etihad moved for, and the district court granted, partial summary
judgment in favor of Etihad as to Doe’s claims for mental-anguish and emotional-distress
damages, including fear of contagion. (For simplicity, we will refer to these various claims
collectively as Doe’s claims for mental anguish.3) The partial-summary-judgment order also
dismissed Doe’s husband’s derivative claim for loss of consortium. Doe declined to pursue a
lost-earnings claim that she had pleaded in her complaint, leaving only her claim for the physical
pain, suffering, and medical expenses caused by the needlestick, which the parties stipulated to
be de minimis relative to the dismissed claims. (These de minimis damages include the physical
pain and suffering from being pricked by the needle: the small hole in Doe’s finger and the
“ouch,” so to speak. But they do not include any mental anguish arising from the fact that it was
1
At first blush, the Eastern District of Michigan seems an unlikely venue for this action. Plaintiffs reside in
Grand Rapids, in the Western District of Michigan, and no part of Plaintiffs’ itinerary included travel to points in the
Eastern District of Michigan. But Plaintiffs’ counsel is based in Oakland County, Michigan (in the Eastern District),
and, as we discuss in this paragraph, venue was proper in the Eastern District of Michigan because of Etihad’s status
as a “foreign state.”
2
Etihad’s status as a foreign state also entitles it by statute to a bench trial rather than a jury trial. See
28 U.S.C. § 1441(d).
3
Mental anguish and emotional distress are distinct harms under Michigan damages laws. See, e.g.,
McClain v. Univ. of Mich. Bd. of Regents, 665 N.W.2d 484, 488 (Mich. App. 2003) (per curiam). But this
distinction does not affect the determination of whether Etihad may be subject to liability for such harms under the
Montreal Convention; the distinction matters, if at all, only in our discussion of the measure of damages in Section
IV, infra.
No. 16-1042 Doe, et al. v. Etihad Airways Page 5
a stray needle and not, for example, a sterilized toothpick, that pricked Doe’s finger. The logic
behind this distinction is that if something like a sterilized toothpick had caused Doe’s bodily
injury, then Doe would not have had any reasonable fear of contagion, so Doe’s fear of
contagion must arise from the fact that it was a needle that caused her injury, rather than arising
from the injury itself, and Doe’s fear of contagion is therefore not recoverable as “damage
sustained in case of bodily injury” under the Montreal Convention. This logic is faulty, of
course, because Doe’s injury was an injury caused by a needle and was not the same as the
injury that a sterilized toothpick would have caused, even if arguably similar. We will discuss
this more fully in Section III.A, infra.) The parties reached a settlement as to these de minimis
damages, and the parties agreed to a “Stipulation and Order of Dismissal with Prejudice,” so that
Plaintiffs could immediately appeal the district court’s partial-summary-judgment order.
We first discuss, in Section III, whether the district court erred in holding that Doe’s
mental-anguish damages were not recoverable under Article 17(1) of the Montreal Convention,
and—after analyzing both the plain text of the treaty and relevant persuasive authorities—we
conclude that the district court did so err. Then, in Section IV, because the Montreal Convention
provides rules for liability but looks to local law for the measure of damages, we conduct a
choice-of-law analysis and hold that Michigan damages law governs both the amount of any
damages Etihad comes to owe Doe and the ability of Doe’s husband to recover loss-of-
consortium damages.
III
The parties agree that Article 17(1) of the Montreal Convention, a multilateral treaty to
which the United States is a signatory, provides Plaintiffs’ only avenue for recovery against
Etihad. See Convention for the Unification of Certain Rules for International Carriage by Air,
art. 17, May 28, 1999, S. Treaty Doc. 106-45, ICAO Doc. No. 9740, 1999 WL 33292734
(entered into force Nov. 4, 2003) (Montreal Convention). More than 125 countries, including the
United Arab Emirates, have signed, ratified, or acceded to the Montreal Convention since 1999.
The interpretation of a treaty is a question of law that we review de novo. United States
v. Page, 232 F.3d 536, 540 (6th Cir. 2000). Under the Supremacy Clause, treaties are “the
No. 16-1042 Doe, et al. v. Etihad Airways Page 6
supreme Law of the Land.” U.S. Const. art. VI, cl. 2. Neither our court nor the Supreme Court
has yet interpreted any provision of the Montreal Convention. The Warsaw Convention (the
Montreal Convention’s longstanding predecessor treaty), however, has been the subject of much
litigation over the past eighty years, and interpretations of the Warsaw Convention have at least
some persuasive value in interpreting parallel provisions of the Montreal Convention.4 See
Convention for the Unification of Certain Rules Relating to International Transportation by Air,
Oct. 12, 1929, 49 Stat. 3000, T.S. 876, 137 L.N.T.S. 11 (Warsaw Convention); In re Air Crash at
Lexington, Ky., 501 F. Supp. 2d 902, 907–08 (E.D. Ky. 2007) (noting that “the ‘common law’ of
the Warsaw jurisprudence is vitally important to understanding the meaning of the Montreal
Convention”) (quoting Baah v. Virgin Atl. Airways, 473 F. Supp. 2d 591, 596 n.7 (S.D.N.Y.
2007)); see also, e.g., Zicherman v. Korean Air Lines Co., 516 U.S. 217 (1996) (interpreting
Warsaw Convention Article 17), Eastern Airlines, Inc. v. Floyd, 499 U.S. 530 (1991) (same), Air
France v. Saks, 470 U.S. 392 (1985) (same). As with the Montreal Convention, the Warsaw
Convention provided international air passengers’ exclusive remedy for claims governed by that
treaty. See, e.g., El Al Isr. Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 168–69 (1999)
(holding that the Warsaw Convention provided the sole remedy for personal-injury claims
arising from injuries sustained during international air travel, even if the injured party could not
state a claim for relief under the Warsaw Convention, in which case no remedy was available at
all).
A. Textual Analysis
Our analysis of Article 17(1) of the Montreal Convention “must begin . . . with the text of
the treaty and the context in which [its] written words are used.” Saks, 470 U.S. at 397 (citing
Maximov v. United States, 373 U.S. 49, 53–54 (1963)). The text of Article 17(1) provides:
The carrier is liable for damage sustained in case of death or bodily injury of a
passenger upon condition only that the accident which caused the death or injury
4
The Warsaw Convention continues to govern disputes involving parties from countries that are signatories
to the Warsaw Convention but not signatories to the Montreal Convention. Russia, for example, is a party to the
Warsaw Convention and did not ratify the Montreal Convention until 2017, so the Warsaw Convention would
govern claims against Russian airlines arising from incidents that occurred prior to Russia’s ratification of the
Montreal Convention.
No. 16-1042 Doe, et al. v. Etihad Airways Page 7
took place on board the aircraft or in the course of any of the operations of
embarking or disembarking.
Montreal Convention art. 17(1).
1. Etihad’s Argument
The contested language here is “in case of.” Etihad’s argument has two components: its
understanding of what “in case of” means, and its application of that understanding to the facts
of this case.
First, Etihad argues that “in case of” means “caused by,” Appellee’s Br. 4, or perhaps
“caused directly by,” see id. at 21. If we impose Etihad’s reading of Article 17(1) back onto the
text of the treaty, Etihad is then “liable for damage sustained [caused directly by] death or bodily
injury of a passenger upon condition only that the accident which caused the death or injury took
place on board the aircraft . . . .” Thus, according to Etihad, in order for Doe to recover for her
mental anguish under Article 17(1), Doe would have to prove that (1) an “accident” caused her
“bodily injury” on board an aircraft and (2) her “bodily injury” (i.e. the small hole in her finger)
directly caused her “damage sustained” (i.e., her mental anguish).
Second, Etihad concedes that an accident caused Doe to suffer a bodily injury on board
its aircraft, but Etihad argues that Doe’s bodily injury did not directly cause her mental anguish:
according to Etihad, Doe’s anguish was caused not by her “bodily injury” (i.e., the needlestick,5
the physical puncture wound) but rather by the “accident” that caused the injury (i.e., being stuck
by a needle, as opposed to being stuck by something else). Order Granting Def.’s Mot. for
Partial Summ. J. 4 (emphasis added) (citations omitted) (“Plaintiff’s mental distress damages
were not caused by her physical injury. It is not the physical needle prick itself that caused
Plaintiff’s distress, but the possibility that she may have been exposed to an infectious disease.”);
see Appellee’s Br. 17 (“[Doe’s] mental anguish damages arise from the nature of the accident
itself and were not caused by the bodily injury”), id. at 20 (“because the plaintiffs’ mental
5
The Oxford English Dictionary defines “needlestick” as “an accidental stab wound produced by a
hypodermic or surgical needle, esp. as a risk factor for the transmission of blood-borne diseases to health-care
workers.” Needle, Oxford English Dictionary, http://www.oed.com/view/Entry/125771 (last visited Aug. 29, 2017).
No. 16-1042 Doe, et al. v. Etihad Airways Page 8
injuries were caused by the ‘accident’ itself and not the ‘bodily injuries’ sustained in the
accident, there could be no recovery under the Convention”).
A simple diagram helps to illustrate Etihad’s curious understanding:
Bodily Injury Mental Anguish
[i.e., the small puncture (compensable only if it is
wound in Doe’s finger] caused by the bodily injury)
(compensable)
ACCIDENT
[i.e., being pricked
by a needle]
Mental Anguish
(not compensable, even though
it is caused by the same accident
that caused the bodily injury)
As this diagram indicates, according to Etihad, mental anguish caused directly by the
bodily injury is recoverable, but mental anguish that merely accompanies the bodily injury, and
which is instead caused more generally by the accident, is not recoverable.
2. Plain Meaning of the Text
But “in case of” does not mean “caused by.”
Rather, the plain meaning of “in case of” is “if there is” or “in the event of” or “during a
case in which there is.” The Oxford English Dictionary, for example, defines “in case” (as a
conjunction) as, “In the event that; if it should happen that; if,” and defines “in case of” (as an
adverb) as “in the event of (esp. something untoward). Now frequently in in case of emergency.”
In case, Oxford English Dictionary, http://www.oed.com/view/Entry/426263 (last visited Aug.
29, 2017). The Canadian Oxford Dictionary has similar definitions and is a seemingly apt
dictionary for identifying the contemporaneous meaning of terms in the Montreal Convention,
given that the dictionary was first published in 1998 and then updated in 2004,
No. 16-1042 Doe, et al. v. Etihad Airways Page 9
while the treaty was signed in 1999 (in Canada) and entered into force in 2003.
See Case, The Canadian Oxford Dictionary (2d ed. 2004),
http://www.oxfordreference.com/view/10.1093/acref/9780195418163.001.0001/m_en_ca001103
0?rskey=8fa6U0&result=11001 (defining “in case” as “in the event that; if,” and defining “in
case of” as “in the event of”).
Clearly, the plain meaning of “in case of” is conditional, not causal. To say in case of X,
do Y is to say “if X happens, then do Y”—none of which means that there is a causal relationship
between X and Y—just as to say in case of a compensable bodily injury, the passenger may
recover damage sustained is to say “if there is a compensable bodily injury, the passenger may
recover damage sustained.” But to adopt Etihad’s meaning of “in case of,” we would impose an
additional causal restriction onto the text of Article 17(1) that the plain text does not
contemplate. Indeed, imposing such an additional causal restriction would contradict the plain
text, which states that “[t]he carrier is liable for damage sustained in case of . . . bodily
injury . . . upon condition only that the accident which caused the death or bodily injury took
place on board the aircraft or [while] embarking or disembarking.” Montreal Convention art.
17(1) (emphasis added).
The phrase “upon condition only” is new to the Montreal Convention—it is not found in
the Warsaw Convention (either in English or in the official French version)6—and it makes clear
6
The official text of Article 17 of the Warsaw Convention provides in full:
Le transporteur est responsable du dommage survenu en cas de mort, de blessure ou de toute autre
lésion corporelle subie par un voyageur lorsque l’accident qui a causé le dommage s’est produit à
bord de l’aéronef ou au cours de toutes opérations d’embarquement et de débarquement.
Warsaw Convention art. 17.
Only the French text of the Warsaw Convention is authoritative, but the United States Supreme Court has
employed as persuasive authority an official English translation of that text, which was presented to the United
States Senate when it consented to ratify the Warsaw Convention in 1934, and which provides:
The carrier shall be liable for damage sustained in the event of the death or wounding of a
passenger or any other bodily injury suffered by a passenger, if the accident which caused the
damage so sustained took place on board the aircraft or in the course of any of the operations of
embarking or disembarking.
49 Stat. 3014; see Olympic Airways v. Husain, 540 U.S. 644, 649 n.4 (2004); Saks, 470 U.S. at 397.
For the most part, the language of the Warsaw Convention’s Article 17 is the same as the language of the
Montreal Convention’s Article 17(1). Notably, the “in case of” language in the Montreal Convention replaced “en
cas de” from the Warsaw Convention, which was translated from the French in the above translation as “in the event
No. 16-1042 Doe, et al. v. Etihad Airways Page 10
that the passenger’s recovery is conditioned only on the occurrence of an accident that causes
death or bodily injury either on board the aircraft or during boarding or deplaning. Surely, the
drafters of the Montreal Convention could have used a word or phrase with causal meaning
instead of “in case of” if they wanted to impose such a causal restriction on the kinds of “damage
sustained” that are recoverable when an accident on board an aircraft causes a passenger to incur
a bodily injury. Indeed, the drafters did impose such a causal requirement in stating that the
accident must have “caused” the death or bodily injury. The drafters’ use of “caused” to express
that an accident must have caused the bodily injury thus provides additional support for our
conclusion that the drafters did not, in the very same sentence, use “in case of” also to mean
“caused by.”
3. The Underpinnings of Etihad’s Argument
Admittedly, in light of the foregoing discussion, Etihad’s position—that “in case of” does
mean “caused by”—may seem absurd. But it is not, and that is because Etihad’s argument is
rooted in a Warsaw Convention decision of the Second Circuit Court of Appeals in which that
court held that American Airlines was not liable under the Warsaw Convention “for mental
injuries that were not caused by physical injuries.” Ehrlich v. Am. Airlines, Inc., 360 F.3d 366,
368 (2d Cir. 2004) (emphasis added). Etihad asks us to adopt the Second Circuit’s Warsaw
Convention decision in Ehrlich to decide the Montreal Convention case before us. But the
Montreal Convention is a new treaty that we interpret as a matter of first impression, and there is
no legal authority that would require us to import Ehrlich’s Warsaw Convention determination to
govern this Montreal Convention claim.
In Ehrlich, an American Eagle7 aircraft overshot its designated runway upon landing at
New York’s JFK International Airport. An arrestor bed—a bed of material made of water, foam,
and cement that crushes under the weight of an airplane, increasing drag and helping bring the
airplane to a stop—saved the plane from plunging into the waters of Thurston Bay, which lay
of.” And, as discussed above, the “upon condition only” language in the Montreal Convention was new: it replaced
“lorsque” from the Warsaw Convention, which was translated from the French in the above translation as “if.”
7
American Eagle is a brand name under which various regional air carriers operate flights on behalf of
American Airlines.
No. 16-1042 Doe, et al. v. Etihad Airways Page 11
200 feet beyond where the plane came to a halt. To evacuate the aircraft, passengers had to jump
six to eight feet from its doorway. Ibid.
Gary and Maryanne Ehrlich were passengers on the flight. They contended that they
suffered bodily injuries (neck, back, shoulder, hip, and knee injuries; hypertension; and a heart
problem) during the abnormal landing and subsequent evacuation. They also alleged mental
injuries including a fear of flying, nightmares, and trouble sleeping. The district court granted
partial summary judgment for the airline defendant as to the mental injuries on the basis that “a
plaintiff may only recover for emotional damages caused by physical injuries.” Id. at 369
(quoting Ehrlich v. Am. Airlines, 99-CV-6013, 2002 U.S. Dist. LEXIS 21419, at *10 (E.D.N.Y.
June 21, 2002) (emphasis added)). The Second Circuit affirmed, noting that “the Ehrlichs had
offered no evidence demonstrating a causal connection between their mental and physical
injuries.” Ehrlich, 360 F.3d at 369.8
8
A footnote in Ehrlich clarifies that the sole dispute between the Ehrlichs and the airline was whether the
airline was liable for mental anguish that only accompanies bodily injury and is not caused by bodily injury—the
Ehrlichs did not argue, as Doe does here, that their bodily injuries in fact caused their mental injuries:
For the purposes of this appeal, American Eagle does not dispute that the Ehrlichs allegedly
sustained mental and bodily injuries which were caused by an accident that took place on board its
aircraft or during the evacuation therefrom. Moreover, on appeal, the Ehrlichs do not challenge
the district court’s conclusion that they failed to raise “a genuine issue of fact regarding a causal
connection between their alleged bodily injuries and their mental suffering.” See Ehrlich,
2002 U.S. Dist. LEXIS 21419, at *11. Instead, their appeal focuses on whether the court properly
construed Article 17. Accordingly, we need not address whether an accident caused the Ehrlichs
to suffer injuries on board an aircraft or in the course of any of the operations of disembarking; we
also need not address whether the Ehrlichs’ alleged physical injuries caused their alleged mental
injuries.
Ehrlich, 360 F.3d at 374 n.8.
It is worth reiterating that in the present case, Doe’s mental anguish is traceable to her bodily injury,
whereas in Ehrlich, it is easier to comprehend the airline’s argument that the Ehrlichs’ bodily injuries did not cause
their mental injuries. There, the Ehrlichs’ alleged mental injuries of fear of flying and sleeplessness could have been
caused by the emergency landing (and not by the bodily injuries sustained during the evacuation). The “accident,”
then could be understood as the emergency landing, which (because it resulted in the evacuation) caused the bodily
injuries sustained in the evacuation, and which separately caused mental injuries that the Ehrlichs would have
sustained regardless of whether they sustained any bodily injuries at all. Of course, it is also possible that the
Ehrlichs’ mental injuries caused by the emergency landing were exacerbated by the evacuation (or indeed,
exacerbated by the bodily injuries they sustained during the evacuation)—but because the Ehrlichs did not argue that
their bodily injuries caused their mental injuries, the Second Circuit was presented with a record on which it was
easier than it is in our case to view the claimed mental injuries as being “caused by the accident” rather than “caused
by the bodily injury.”
No. 16-1042 Doe, et al. v. Etihad Airways Page 12
Ehrlich reached its conclusion only after grappling at length with the original French text
of the Warsaw Convention, finding it ambiguous as to whether it held airlines liable for mental
injuries that are not caused by a compensable bodily injury, and inquiring into the original
purpose of the Warsaw Convention when it was signed in 1929. Indeed, Ehrlich discussed the
Montreal Convention as well: the Montreal Convention was signed just weeks after the Ehrlichs’
emergency landing, and the Montreal Convention entered into force after the Second Circuit
heard argument in Ehrlich but before it issued its opinion. See id. at 372. But Ehrlich expressly
rejected the argument that the Montreal Convention had any retroactive applicability to the
Ehrlichs’ claim, and the Second Circuit based its decision entirely on its interpretation of the
Warsaw Convention. See id. at 373 (“neither the Montreal Convention nor the intentions of its
drafters govern this appeal”).9
In reaching its conclusion, Ehrlich followed the lead of Jack v. Trans World Airlines,
854 F. Supp. 654, 663–68 (N.D. Cal. 1994), a district-court decision that also concluded that
“only emotional distress flowing from the bodily injury is recoverable” under Article 17 of the
Warsaw Convention. Id. at 665 (emphasis added). Jack expressly acknowledged (after rejecting
other possible interpretations of the Warsaw Convention) that its interpretation “does read a
causal component into the phrase ‘damage sustained in the event of,’” but nevertheless went
ahead with such an interpretation because that interpretation was “not prohibited” by the United
States Supreme Court’s Warsaw Convention precedents. Id. at 668.
But “to alter, amend, or add to any treaty, by inserting any clause, whether small or great,
important or trivial, [is] an usurpation of power, and not an exercise of judicial functions.” The
Amiable Isabella, 19 U.S. (6 Wheat.) 1, 71 (1821) (holding that the 1795 U.S.–Spain Treaty for
safe passage of ships did not protect a Spanish claimant from United States condemnation of a
schooner during the War of 1812 when the requisite passport mandated by the treaty was not
affixed to the vessel). Both Ehrlich and Jack interpolated a causal component into the Warsaw
Convention that was not required by the text, and both did so expressly to serve the Warsaw
9
Moreover, because the Montreal Convention was signed well before the litigation in Ehrlich began, there
is no reason to suppose that the drafters of or parties to the Montreal Convention took Ehrlich to be a legal precedent
that would aid signatories in future analysis of the text of Article 17(1) of the Montreal Convention.
No. 16-1042 Doe, et al. v. Etihad Airways Page 13
Convention’s purpose of “limiting the liability of air carriers in order to foster the growth of the
fledgling commercial aviation industry.” Ehrlich, 360 F.3d at 385 (quoting Floyd, 499 U.S. at
546); see also Jack, 854 F. Supp. at 662, 665 (“such an approach furthers the pro-airline industry
goals of the Warsaw Convention because it is so restrictive of passengers’ rights”). To be sure,
both Ehrlich and Jack found ambiguity in the original French text of the Warsaw Convention
before inquiring into the purpose of that treaty and seeking to give effect to that purpose. But
what that should mean for us is not, as Etihad would have it, that we should blindly adopt
Ehrlich as the law of our circuit for claims under Article 17(1) of the Montreal Convention, but
rather that we should grapple with the text of the Montreal Convention itself, and then, to the
extent that we find any ambiguity therein, look to relevant persuasive authority—which may
include evidence of the purpose of the Montreal Convention, but almost certainly not the nearly
century-old purpose of the Warsaw Convention—to assist us in resolving that ambiguity.
Ehrlich recognized that “the Montreal Convention is an entirely new treaty that unifies
and replaces the system of liability that derives from the Warsaw Convention.” Ehrlich,
360 F.3d at 371 n.4. So do we. The Montreal Convention was signed in 1999, in six languages
including English, and we are charged with interpreting that English text in the first instance
rather than clinging to the Second Circuit’s purposivist interpretation of a French-language
predecessor treaty signed in 1929. In Sections III.B through III.E, infra, to fortify our textual
analysis of Article 17(1), we will discuss more fully the relative purposes of the Warsaw and the
Montreal Conventions, and we will address relevant decisions of the United States Supreme
Court and other courts, which provide useful context for both Ehrlich and our decision here. But
for now, it suffices to say that Ehrlich and Jack do not provide insight into meaning of the plain
text of Article 17(1) of the Montreal Convention.
No. 16-1042 Doe, et al. v. Etihad Airways Page 14
4. Our Textual Interpretation
Here, then, is a fairer illustration of what damages are recoverable under Article 17(1)
according to the plain text of the Montreal Convention:
Bodily Injury Mental Anguish
[i.e., the small puncture (compensable)
wound in Doe’s finger]
(compensable)
ACCIDENT10
[i.e., being pricked
by a needle]
Mental Anguish
(also compensable, so long as it results from an accident
that also causes bodily injury, even though the mental anguish
might not flow from such bodily injury)
As this diagram makes clear, because an accident onboard Etihad’s aircraft caused Doe to
suffer a bodily injury (a fact that Etihad concedes), Doe may therefore recover damages for her
mental anguish, regardless of whether that anguish was caused directly by her bodily injury or
more generally by the accident that caused the bodily injury. That is because, either way, Doe’s
mental anguish is “damage sustained in case of”—i.e., “in the event of” a compensable bodily
injury.
What the plain text of Article 17(1) also makes clear is that a passenger cannot recover
damages for mental anguish if there is no requisite accident or if the accident does not cause a
bodily injury. For example, if ordinary turbulence causes a passenger to suffer an anxiety attack,
the Montreal Convention would not allow the passenger to recover damages for the anxiety
10
The meaning of “accident” is not disputed here. The United States Supreme Court has consistently
interpreted “accident” in Article 17 of the Warsaw Convention to mean “an unexpected or unusual event or
happening that is external to the passenger.” Saks, 470 U.S. at 405; see also Husain, 540 U.S. at 650. We will
discuss Saks and Husain in context in Section III.C.1, infra.
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attack because ordinary turbulence is not an “accident.” Likewise, if there is an accident, such as
an emergency landing, and a passenger escapes physically unscathed but mentally harmed, the
passenger is barred from recovering mental-anguish damages for want of the required bodily
injury. This understanding is supported by the plain text of Article 17(1) of the Montreal
Convention—and it also happens to have the advantage of being simpler than Ehrlich’s
approach.
Admittedly, however, the text of Article 17(1) is still not entirely clear as to what
connection must exist between the required bodily injury and claimed mental anguish. The plain
text of Article 17(1) is sufficient on its own to reject Etihad’s interpretation of it. And the plain
text of Article 17(1) allows our conclusion that when a single “accident” causes both bodily
injury and mental anguish, that mental anguish is sustained “in case of” the bodily injury. But
the plain text on its own does not necessarily require that a single accident cause both the
required bodily injury and the claimed mental anguish in order for that mental anguish to be
“sustained in case of” the bodily injury, as our conclusion suggests.
What if, for example, there are two accidents: first, unusually rough turbulence (which
causes a passenger mental anguish but no bodily injury), and second, an unrelated emergency
landing, during which every passenger sustains at least some bodily injury. Does the bodily
injury sustained in the emergency landing allow the passenger who had previously suffered
severe emotional distress to recover for that distress? That is, is mental anguish from the first
accident considered “damage sustained in case of bodily injury” because it was sustained during
the same flight as the second accident, which caused bodily injury?
On the one hand, it seems reasonable to read the “in case of” language as precluding
recovery of damages for mental anguish in the example presented in the preceding paragraph,
and our interpretation of Article 17(1) implicitly supports such a conclusion; but on the other
hand, the text of the treaty does not explicitly prohibit such recovery. So, both to bolster our
conclusion that mental anguish is “sustained in case of” a bodily injury when it arises from the
same accident that caused that bodily injury, and to reinforce the proposition that Ehrlich does
not control this case, we review relevant persuasive authorities that provide insight into the
meaning of Article 17(1) in the context of its ratification by its signatories. See, e.g., Saks,
No. 16-1042 Doe, et al. v. Etihad Airways Page 16
470 U.S. at 396 (“[T]reaties are construed more liberally than private agreements, and to
ascertain their meaning we may look beyond the written words to the history of the treaty [and]
the negotiations” that produced the treaty. (alteration in original) (quoting Choctaw Nation of
Indians v. United States, 318 U.S. 423, 431–32 (1943))). We therefore turn next to the history of
the negotiations that culminated in the signing of the Montreal Convention and to evidence of the
signatories’ purpose in ratifying the Montreal Convention.
This historical inquiry is important because the question before us is important. And the
question before us is important for several reasons. First, Article 17(1) governs not only claims
for needlesticks, snakebites, and the like, but also claims for injuries and fatalities sustained in
plane crashes. Second, “uniformity is an important goal of treaty interpretation,” Sanchez-
Llamas v. Oregon, 548 U.S. 331, 383 (2006), so we look to the history of the Montreal
Convention to ensure that the conclusion we draw today is consistent with how our sister
signatories would understand the text of Article 17(1). Third, the Warsaw Convention’s
analogue to the question before us was expressly left unanswered by the United States Supreme
Court in Floyd when it ruled that mental injury standing alone was not recoverable under the
Warsaw Convention because of the absence of the required death or bodily injury:
We conclude that an air carrier cannot be held liable under Article 17 when an
accident has not caused a passenger to suffer death, physical injury, or physical
manifestation of injury. Although Article 17 renders air carriers liable for
“damage sustained in the event of” . . . such injuries, we express no view as to
whether passengers can recover for mental injuries that are accompanied by
physical injuries. That issue is not presented here because respondents do not
allege physical injury or physical manifestation of injury.
Floyd, 499 U.S. at 552–53.
Fourth, although we have expended considerable effort explaining that the Montreal
Convention is a new treaty that we should interpret independently of the Warsaw Convention,
such that Ehrlich does not inform our decision here, there is nonetheless evidence that the
drafters of the Montreal Convention intended Article 17(1) to be construed consistently with
well-settled Warsaw Convention precedents of the United States Supreme Court. See
Explanatory Note to Montreal Convention, art. 17, S. Treaty Doc. 106-45, 1999 WL 33292734,
No. 16-1042 Doe, et al. v. Etihad Airways Page 17
at *16 (2000).11 These precedents, as we will discuss, include the United States Supreme
Court’s decision defining “accident” (in Saks, a decision from 1985 that has gained global
currency). But these precedents do not include Ehrlich, which was decided well after the
Montreal Convention was signed (and which was not a decision of a signatory’s highest court, in
any event, see, e.g., Husain, 540 U.S. at 655 n.9).
And finally, while Ehrlich was a Warsaw Convention decision, we recognize that our
conclusion today is directly contrary to Ehrlich’s conclusion as to a similarly worded provision.
The history behind the Montreal Convention will make clear why the conclusion we reach today
is correct, and why we cannot use the same lines of reasoning that Ehrlich and Jack used in
reaching their holdings that denied recovery for mental injuries that accompanied but did not
directly flow from a bodily injury.
11
This Explanatory Note, though not controlling, is nevertheless insightful in that it also indicates that the
drafters of Article 17(1) did not aim to limit recovery for mental anguish to what would have been available under
the Warsaw Convention. The Explanatory Note for Article 17(1) is provided here in full:
Paragraph 1 provides for carrier liability for death or bodily injury of a passenger caused
by an accident on board the aircraft or in the course of embarking or disembarking. The carrier’s
limited defenses to liability are provided for elsewhere in the Convention (i.e., Article 21, below).
It is expected that this provision will be construed consistently with the precedent developed under
the Warsaw Convention and its related instruments.
Following extensive debate, the Conference decided not to include an express reference
to recovery for mental injury, with the intention that the definition of “bodily injury” would
continue to evolve from judicial precedent developed under Article 17 of the Warsaw Convention,
which uses that term. See International Conference on Air Law, Vol I Minutes at p. 201
(Thirteenth Meeting, May 25, 1999, Summary of the Chairman of the Conference). The
Conference adopted the following Statement, recorded in the Minutes of the Proceedings:
With reference to Article 16 [sic], paragraph 1 of the Convention, the expression
‘bodily injury’ is included on the basis of the fact that in some States damages
for mental injuries are recoverable under certain circumstances, that
jurisprudence in this area is developing and that it is not intended to interfere
with this development, having regard to jurisprudence in areas other than
international carriage by air; ….
International Conference on Air Law, Vol. I Minutes at pp. 242-43 (Plenary, Sixth Meeting, May
27, 1999).
The reference in this statement to “jurisprudence in areas other than international carriage
by air” reflects the concern of some States that jurisprudence under Article 17(1) of the
Convention should not develop in a particular State beyond the then current jurisprudence of that
State. Rather, that jurisprudence should continue to develop in a manner consistent with, not
ahead of, jurisprudence in other areas in such States.
Explanatory Note to Montreal Convention, art. 17, S. Treaty Doc. 106-45, 1999 WL 33292734, at *16–17.
No. 16-1042 Doe, et al. v. Etihad Airways Page 18
B. History and Purpose of the Montreal Convention
The Warsaw Convention was opened for signature in 1929, just two years after Charles
Lindbergh famously flew his Spirit of St. Louis solo from New York to Paris, and eight years
before Amelia Earhart disappeared over the Pacific Ocean. The original parties to the Warsaw
Convention had the “primary purpose of . . . limiting the liability of air carriers in order to foster
the growth of the fledgling commercial aviation industry.” Floyd, 499 U.S. at 546 (citing Trans
World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 256 (1984); Minutes, Second Int’l
Conf. on Private Aeronautical Law, October 4–12, 1929, Warsaw 37 (R. Horner & D. Legrez
trans. 1975) (“Warsaw Conference Minutes”); and Lowenfeld & Mendelsohn, The United States
and the Warsaw Convention, 80 Harv. L. Rev. 497, 498–99 (1967)).
The Warsaw Convention itself was the product of four years of work by a committee of
experts that was appointed in 1925 at an international conference in Paris at which an early draft
protocol was circulated. That draft protocol included an expansive liability provision, holding
the carrier “liable for accidents, losses, breakdowns, and delays” without imposing any
requirement of death or bodily injury. Ministère des Affaires Étrangères, Conférence
Internationale de Droit Privé Aérien (27 Octobre–6 Novembre 1925), 79 (1926), as translated in
Floyd, 499 U.S. at 542.
By the time the conference in Warsaw began in 1929, the committee had divided the
protocol on liability into three separate provisions (one for injury to passengers, one for damage
to goods, and one for losses from delays). This text was then further developed in Warsaw until
the final version of the Warsaw Convention was agreed upon—with much narrower language in
Article 17 for air carriers’ liability to injured passengers. See Warsaw Conference Minutes at
205–06; Floyd, 499 U.S. at 543. Moreover, unlike the Montreal Convention’s strict-liability
scheme, the Warsaw Convention imposed a cap on damages at 125,000 gold French francs (at
the time, approximately $8,300) per passenger, which carriers could reduce to zero upon
showing that they had exercised due care by taking “all necessary measures to avoid the damage
or that it was impossible” to do so. The cap on damages was lifted (so as to allow potentially
unlimited liability) only if the carrier’s “willful misconduct” caused the injury or death. Warsaw
Convention arts. 17, 20, 22.
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The United States Supreme Court has stated that “it is reasonable to infer that the
Conference adopted the narrower language [in Article 17] to limit the types of recoverable
injuries.” Floyd, 499 U.S. at 543. “Whatever may be the current view among Convention
signatories, in 1929 the parties were more concerned with protecting air carriers and fostering a
new industry rather than providing a full recovery to injured passengers.” Id. at 546.
The Warsaw Convention entered into force in 1933, and the United States became a party
to it in 1934. Paul S. Dempsey & Michael Milde, International Air Carrier Liability: The
Montreal Convention of 1999, 13 (McGill Univ. Centre for Research in Air & Space Law)
(2005). The United States subsequently led various efforts to modernize it and raise its liability
limits. See Montreal Convention, 1999 WL 33292734, at *3–5 (Letter of Submittal from
President Clinton to United States Senate) (“Letter of Submittal”) (detailing history of Warsaw
Convention and proposed modifications). In the early 1950s, the newly created International
Civil Aviation Organization (ICAO) began evaluating a potential increase to the liability limits at
international conferences in Rio de Janeiro and The Hague. At The Hague, the United States
proposed raising the personal-liability limits to approximately $25,000, but the majority of other
participants resisted; the United States countered with a reduced proposal of approximately
$20,000, which was also met with disapproval. “It was not until the United States began to
threaten denunciation” that any agreement to increase the personal-liability limits was reached,
and even then, the United States “succeeded only in doubling the original Warsaw Convention
liability limit to $16,600,” in a proposed amendment to the Warsaw Convention known as the
Hague Protocol. Dempsey & Milde, supra, at 19 n.51; Letter of Submittal, 1999 WL 33292734,
at *3; see Protocol to Amend the Convention for the Unification of Certain Rules Relating to
International Carriage by Air, done at The Hague September 28, 1955. The United States,
dissatisfied with the low liability limits, refused to ratify the Hague Protocol.12
In 1965, in response to what some courts have described as the “unconscionably low”
liability limits under the Warsaw Convention, Dunn v. Trans World Airlines, Inc., 589 F.2d 408,
411 (9th Cir. 1978), United States Secretary of State Dean Rusk gave Poland six months’ notice
12
In 2003, for reasons not germane to this opinion, the United States finally did ratify the Hague Protocol,
but by that time, the personal-liability limits had long been raised, as we are about to discuss.
No. 16-1042 Doe, et al. v. Etihad Airways Page 20
that the United States intended to denounce the Warsaw Convention. Dempsey & Milde, supra,
at 29 n.87 (citing Dep’t of State Press Release No. 268, 50 Dep’t of State Bull. 923–24 (1965)).
The notice included a proviso that the United States would retract its notice of denunciation if
personal-liability limits were raised to $75,000 to $100,000 per passenger.
As a result of this notice, the ICAO held a conference in Montreal in 1966 at which the
United States unsuccessfully sought to increase the personal-liability limits. The airlines
themselves, however—including all major air carriers that served the United States—entered into
a private intercarrier agreement (the Montreal Agreement) that made two broad changes to the
Warsaw Convention’s limitations. First, the Montreal Agreement increased the personal-liability
limit to $75,000 per passenger. Second, the Montreal Agreement imposed strict liability up to
the $75,000 limit (while retaining the preexisting provision that allowed liability beyond that
limit upon a showing of willful misconduct by the airline). CAB Order E-23680 (May 13,
1966), 31 Fed. Reg. 7,302 (May 19, 1966), reprinted at 49 U.S.C.A. § 1502 (1970). The United
States retracted its notice of denunciation. Dempsey & Milde, supra, at 30. The Montreal
Agreement remained in force among its signatories for approximately thirty years, and was
applicable to all carriage to, from, or through the United States.
In the wake of the Montreal Agreement of 1966, various other international agreements
were also reached to increase liability. In 1974, various European and Japanese carriers agreed
to increase passenger liability in an informal “Malta Agreement.” Id. at 31. In 1992, Japanese
carriers agreed to strict liability for personal injury up to 100,000 Special Drawing Rights per
passenger.13 And in 1995, a dozen airlines signed a “Washington Intercarrier Agreement,”
endorsed by the International Air Transport Association, to which the United States Department
of Transportation had given antitrust immunity to facilitate discussion of the modernization of
international air-carrier liability. Id. at 33–34. This Washington Intercarrier Agreement, signed
in Kuala Lumpur, imposed strict liability up to 100,000 SDRs per passenger and removed the
“willful misconduct” provision for liability beyond the cap, replacing that provision with
13
The Special Drawing Right (SDR) “is an artificial ‘basket’ currency developed by the International
Monetary Fund.” Letter of Submittal, 1999 WL 33292734 at *4. On August 21, 2017, one SDR was worth
approximately $1.42. Int’l Monetary Fund, SDR Valuation (Aug. 29, 2017),
https://www.imf.org/external/np/fin/data/rms_sdrv.aspx.
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something more like a negligence standard that imposes unlimited liability above the 100,000-
SDR cap if the airline cannot prove that it took “all necessary measures” to avoid the injury. The
major United States-based airlines joined the Washington Intercarrier Agreement within a week
of its initial signing in Kuala Lumpur. Ibid.
Also in the wake of the Montreal Agreement of 1966, aside from the private intercarrier
agreements that were negotiated, the United States continued to seek amendments to the Warsaw
Convention that would impose higher personal-liability limits. In 1971, the Guatemala City
Protocol came close to achieving a limit of 1,500,000 gold francs (then equivalent to
approximately $100,000) per passenger, but that Protocol would have imposed an absolute
limitation on liability, even in cases of willful misconduct. See id. at 22–26. The United States
Senate refused to ratify the Guatemala City Protocol in part because it used the gold standard for
liability limits and because it would have imposed an absolute, unbreakable limitation on
liability. In 1975, various “Montreal Protocols” were proposed at a diplomatic conference as
part of an initiative to replace the Warsaw Convention’s gold standard with the SDR. But the
only protocol that entered into force worldwide was Protocol No. 4, which affected only cargo
liability and not personal-injury liability. See id. at 26–29.
Against that backdrop, the Montreal Convention of 1999 was revolutionary: it replaced
not only the Warsaw Convention but also “all of its related instruments and . . . eliminate[d] the
need for the patchwork of regulation and private voluntary agreements” that then dominated the
world’s air-carrier liability regime. Letter of Submittal, 1999 WL 33292734, at *7. The
Montreal Convention imposes strict liability for injuries that are compensable under Article
17(1), up to 100,000 SDRs per passenger, with a decennial adjustment for inflation. (The first
official adjustment came in 2009, increasing the strict-liability limit to 113,100 SDRs—or
approximately $160,000—per passenger. Montreal Convention arts. 21, 24; see Inflation
Adjustments to Liability Limits Governed by the Montreal Convention Effective Dec. 30, 2009,
74 Fed. Reg. 59,017 (Nov. 16, 2009).) Above that strict-liability limit, a carrier remains liable
for all damage sustained, with no limit, unless the carrier can prove either that “such damage was
not due to the negligence or other wrongful act or omission of the carrier or its servants or
agents,” or that “such damage was solely due to the negligence or other wrongful act or omission
No. 16-1042 Doe, et al. v. Etihad Airways Page 22
of a third party.” Montreal Convention art. 21. Finally, an exoneration provision allows a
reduction in compensation for injuries caused by or contributed to by the plaintiff, in the same
manner as a pure-comparative-negligence or pure-comparative-fault scheme; this exoneration
provision applies to all claimed damages including those falling under the strict-liability limit.
Montreal Convention art. 20. In short, the Montreal Convention replaced a “restrictive,” “pro-
airline industry” regime, Jack, 854 F. Supp. at 662, 665, with “a treaty that favors passengers
rather than airlines.” Lexington, 501 F. Supp. 2d at 908 (quoting Ehrlich, 360 F.3d at 371 n.4
(describing Montreal Convention)). And it did so on terms that reflected decades of effort by the
United States to abolish the outdated limitations of the Warsaw Convention.
Moreover, by 1999, when the Montreal Convention was opened for signature, the
aviation industry was anything but “fledgling,” and the purpose of the Montreal Convention was
not to protect the aviation industry, but rather to provide a “modernized uniform liability regime
for international air transportation.” Letter of Submittal, 1999 WL 33292734, at *6.
In light of the great difference between the purpose of the Warsaw Convention and the
purpose of the Montreal Convention, then, it hardly seems appropriate for us to look to the
purpose of the Warsaw Convention, as Etihad would have us do in relying on Ehrlich, in order to
arrive at a different conclusion from one compelled by the plain text of the Montreal Convention.
Our Supreme Court’s Warsaw Convention jurisprudence has relied consistently on analysis of
the purpose of that treaty as it was implemented in 1929. See, e.g., Zicherman, 516 U.S. at 221–
23; Saks, 470 U.S. at 400–05; Floyd, 499 U.S. at 546. What the historical record makes clear is
that the considerations favoring a close textual reading of the Montreal Convention—a product
of at least five decades of international negotiations—far outweigh whatever considerations
would weigh in favor of rewriting the text of the Montreal Convention in order to accommodate
Ehrlich or effectuate the purpose of the Warsaw Convention, as Etihad would have us do.
C. Relevant Warsaw Convention Litigation
We turn next to (1) relevant decisions of our Supreme Court under the Warsaw
Convention; (2) a brief summary of our reasons for rejecting Ehrlich in light of the foregoing
No. 16-1042 Doe, et al. v. Etihad Airways Page 23
discussion of the history and purpose of the Montreal Convention; and (3) a brief discussion of
relevant district-court cases.
1. United States Supreme Court Decisions Under the Warsaw Convention
From 1984 to 2004, the United States Supreme Court handed down a series of seven
opinions clarifying various aspects of the Warsaw Convention, most of which involved Article
17. The first of these, Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243 (1984),
upheld the Convention’s liability limit for cargo and is not particularly relevant to our case.
More relevant is the Court’s 1985 decision in Air France v. Saks, in which it held that “accident”
in Article 17 of the Warsaw Convention means “an unexpected or unusual event or happening
that is external to the passenger.” Saks, 470 U.S. at 405 (denying passenger’s recovery for
deafness caused by cabin depressurization where the depressurization was ordinary and the
plaintiff was the only passenger on the flight who was affected).
A year later, the Court decided Chan v. Korean Air Lines, Ltd., 490 U.S. 122 (1989),
holding that the Warsaw Convention’s limitations applied even if an airline defendant failed to
provide notice of the Convention in at least 10-point type as the airline defendant agreed to in the
Montreal Agreement of 1966. Chan, 490 U.S. at 135 (holding that although Korean Air Lines
had joined the Montreal Agreement in 1969 and had violated that agreement by providing notice
of the Convention only in 8-point type, the Warsaw Convention’s limitations still applied
because the Montreal Agreement did not impose any sanction at all for failure to provide notice
in the required typeface, let alone the sanction of forfeiting liability limitations).
In 1991, the Court decided Eastern Airlines v. Floyd, which as we noted earlier held that
“bodily injury” in Article 17 of the Warsaw Convention does not allow for the recovery of
mental injuries on their own (that is, with no physical injury incurred whatsoever), but which
“express[ed] no view as to whether passengers can recover for mental injuries that are
accompanied by physical injuries.” Floyd, 499 U.S. at 552. Next came Zicherman v. Korean Air
Lines in 1996, in which the Court held that although the Warsaw Convention provided rules for
liability and limitations of liability, it did not govern the measure (or calculation, so to speak) of
damages, which was instead a matter to be determined in each case by applicable domestic law.
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Zicherman, 516 U.S. at 225 (“[Q]uestions of who may recover, and what compensatory damages
they may receive, . . . were unresolved by the Convention and left to ‘private international
law’—i.e., to the area of jurisprudence we call ‘conflict of laws,’ dealing with the application of
varying domestic laws to disputes that have an interstate or international component.”).
In 1999, the Court decided El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, in which it held
that the Warsaw Convention provided the sole remedy for personal-injury claims arising from
injuries sustained during international air travel, even if the injured party could not state a claim
for relief under the Warsaw Convention, in which case no remedy was available at all. Tseng,
525 U.S. at 161 (alleged assault by El Al agents during preflight security search that did not
result in bodily injury was not an “accident” and was not compensable under the Warsaw
Convention; the Warsaw Convention nevertheless continued to preempt local claims for
damages from the assault).
Finally, in 2004, the Court decided Olympic Airways v. Husain, in which it clarified that
finding an “accident” to have occurred for the purpose of applying Article 17 does not require
identifying a single “injury producing event” but may rather involve a chain of causation that
results in death or bodily injury, so long as there is an unexpected or unusual happening external
to the passenger in that chain, following Saks.14 Husain, 540 U.S. at 651–54 (when asthmatic
passenger died after flight attendant repeatedly but wrongly refused to reseat him away from the
14
At oral argument, there was some confusion about what the “accident” was in this case: was it the
airline’s failure to clean out the seatback pocket, or was it the moment at which the needle in the seatback pocket
pricked Doe’s finger? Under Husain, it is not terribly important to identify the moment of the accident so long as
there was an accident. That said, it seems clear in our case that the “unexpected or unusual happening” was the
moment when the needle pricked Doe’s finger; the airline’s failure to clean the pocket was perhaps underlying
negligence that allowed the accident to happen. The confusion can be traced to a line from Saks, in which the Court
stated that “the text of Article 17 [of the Warsaw Convention] refers to an accident which caused the passenger’s
injury, and not to an accident which is the passenger’s injury.” Saks, 470 U.S. at 398. What the Court meant there
was that the mere fact of an unexpected or unusual injury (such as a passenger, for example, suffering a sudden heart
attack during a flight) is not itself an accident—something unexpected and external to the passenger must itself
cause an injury. At oral argument, presumably in response to Etihad’s argument that attempted to separate Doe’s
injury of bring pricked from the fact that Doe was pricked by a needle, see Section III.A.1, supra, Doe’s counsel
argued that Etihad’s failure to clean the airplane was the accident and the needlestick was the bodily injury. Both of
those arguments are misplaced: the needlestick was simply an accident that caused a contemporaneous bodily injury.
Nothing in the Montreal Convention or in the Warsaw Convention caselaw requires us to separate the accident from
the bodily injury in cases like this one where there is no temporal gap between the accident and the bodily injury.
Of course, in most cases, there is such a gap, as when an accident such as a crash landing causes subsequent and
separately identifiable injuries—but in cases like ours, or perhaps in cases of insect bites or physical assaults by
flight crewmembers, the accident and the bodily injury may logically be one and the same.
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smoking section, the failure to reseat counted as an “accident,” even though the presence of
ambient smoke in the cabin—not itself an unexpected or unusual happening on a flight that
allowed smoking—could be viewed as an “injury producing event”).
Saks, Chen, Floyd, and Zicherman were all decided unanimously, and Franklin Mint and
Tseng were both decided eight to one over the dissent of Justice Stevens. Husain was decided
six to two, with Justice Scalia dissenting, arguing that because two other Warsaw Convention
signatories (England and Australia) had rejected the proposition that an airline’s inaction could
constitute an “accident” under Article 17, and because the text of Article 17 did not clearly
resolve that issue, the Court should instead have followed the English and Australian decisions.
Husain, 540 U.S. at 659–64 (Scalia, J., dissenting).
These opinions have enjoyed wide acceptance among our sister signatories, which have
given them (especially Saks, Tseng, and Floyd) at least some deference and have developed their
own jurisprudence using these opinions as guideposts. See, e.g., Plourde c. Service aérien
F.B.O. inc., 2007 QCCA 739, para. 29 (Court of Appeal of Quebec) (applying Floyd to deny
recovery for purely psychological injury in a Montreal Convention case); Povey v. Qantas
Airways Ltd. (2005) 223 Conn. L. Rptr. 189, 190 (High Court of Australia) (applying Saks and considering
Tseng and Husain in Warsaw Convention case); King v. Bristow Helicopters Ltd [2002] UKHL 7
(House of Lords) (applying Saks, Tseng, and Floyd in Warsaw Convention case).
Because these Supreme Court cases analyzed aspects of the Warsaw Convention that we
have no reason to believe have changed following the ratification of the Montreal Convention
(and that neither party has argued have changed following the ratification of the Montreal
Convention), it is reasonable to conclude that these cases form part of the “precedent” consistent
with which, according to the Explanatory Note (see n.11, supra), the drafters expected
signatories to construe Article 17(1) of the Montreal Convention. Accordingly, we have adopted
Saks’s definition of “accident,” and our discussion of damages in Section IV will be guided by
Zicherman’s deference to the forum jurisdiction’s choice-of-law rules.
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2. Why the Second Circuit’s Ehrlich Decision Does Not Govern Montreal Convention Claims
In light of the discussion in Sections III.A and III.B, there are several reasons why we
decline to adopt Ehrlich to govern Doe’s claims. First, Etihad’s argument that we should adopt
Ehrlich is unconvincing in part because of how thorough Ehrlich itself is: Ehrlich reaches its
conclusion only after plumbing the depths of the original French meaning of the Warsaw
Convention, Ehrlich, 360 F.3d at 376–78 (analyzing whether “dommage survenu en cas de . . .
lésion corporelle” incorporates a requirement that the bodily injury [lésion corporelle] cause the
damage [dommage]), French legal materials, id. at 380, the purpose of the Warsaw Convention,
id. at 385, and the “negotiating history” of the Convention, ibid. Indeed, if Ehrlich is persuasive,
it is persuasive not for the conclusion it reached but for how it got there, and our similarly
searching analysis leads us to a conclusion opposite Ehrlich’s.
Second, Ehrlich interpreted the authoritative French text of the Warsaw Convention, and
found ambiguity in that text (in the original French) that Ehrlich thought could accommodate a
causal meaning.15 Specifically, Ehrlich examined French-language dictionaries and found that
the word “cas” in “en cas de” (the French phrase that was the Warsaw Convention analogue to
the Montreal Convention’s “in case of”) could actually mean “cause.” Ehrlich, 360 F.3d at 377–
78 (“If ‘cas’ means ‘cause,’ then the phrase ‘dommage survenu en cas de . . . lésion corporelle,’
as those words are used in Article 17, would hold carriers liable for any ‘damages sustained in
the cause of . . . bodily injury.’ Such a translation is amenable to an interpretation that would
allow passengers to recover for mental injuries only where they were caused by a bodily
injury.”). Setting aside the fact that the French word cas does not actually mean “cause” except
perhaps in the same way that we might say a “hopeless case” is a “lost cause,”16 the range of
ambiguity in the English “in case of” is far, far narrower than the range of ambiguity that Ehrlich
found in the French “en cas de” and, as we concluded in Section III.A, notwithstanding any
ambiguity in the English “in case of,” the plain text of the English “in case of” does not contain a
requirement that “damages sustained” be “caused by” bodily injury.
15
See n.6, supra.
16
See, e.g., Cas, Grand Dictionnaire Encyclopédique Larousse (1982).
No. 16-1042 Doe, et al. v. Etihad Airways Page 27
Third, as we discussed in Section III.B, the purpose of the Montreal Convention vastly
differs from the purpose of the Warsaw Convention, such that we have no reason to interpret
Article 17(1) of the Montreal Convention in such a way as to serve the purposes of the Warsaw
Convention, as Ehrlich did.
Fourth, although the Ehrlich court stated that its ruling was necessary to avoid anomalous
results, it appears that under the Montreal Convention, following Ehrlich would be more rather
than less likely to lead to anomalous results. Ehrlich explained its reasoning as follows:
The interpretation of Article 17 favored by the [plaintiffs] would give rise to
anomalous and illogical consequences because “similarly situated passengers
[would be] treated differently from one another on the basis of an arbitrary and
insignificant difference in their experience.” For example, a passenger who
sustained a mental injury but no bodily injury would be unable to look to Article
17 for relief whereas a co-passenger who suffered the same mental injury yet
fortuitously pinched his little finger in his tray table while evacuating and thereby
suffered an unrelated bodily injury would be able to hold the carrier liable under
the Warsaw Convention.
Ehrlich, 360 F.3d at 386.
But our interpretation of Article 17(1) of the Montreal Convention does not necessarily
imply this result. Ehrlich’s hypothetical here presumably involves some sort of crash or
emergency landing (no context is provided in Ehrlich itself for the portion quoted above). Under
our interpretation of the Montreal Convention, if an airplane crash-landed, then any passenger
who sustained a bodily injury caused by that crash-landing would also be permitted to recover
for mental anguish sustained in that crash-landing—i.e., anguish sustained “in case of” a
compensable bodily injury. If a passenger sustained a broken leg, that passenger would be able
to recover for the broken leg, for mental anguish caused by the broken leg, and for mental
anguish arising from the crash-landing that accompanied the broken leg—all of that would be
“damage sustained in case of” the broken leg. True, another passenger escaping the same crash-
landing physically unscathed would be barred from recovering damages for mental anguish
alone, but that’s not an “anomalous” result. Rather, it is a result that is fully consistent with (and
compelled by) the text of the Montreal Convention.
No. 16-1042 Doe, et al. v. Etihad Airways Page 28
Returning to Ehrlich’s hypothetical of the passenger who escapes the same crash-landing
entirely unscathed except for a pinched pinky finger: what result? As we read the Montreal
Convention, so long as that passenger can prove that the accident (i.e. the crash-landing) caused
the injury to the pinky finger, that passenger would be able to recover both for the physical injury
to the finger and for mental anguish sustained—and that passenger would be able to recover
mental anguish sustained on the same terms as the passenger who suffered the broken leg.
None of these outcomes produce an “illogical or unreasonable result” that might caution
against our ruling today. Int’l Union, United Auto., Aerospace & Agric. Implement Workers of
Am. v. Brock, 816 F.2d 761, 766 (D.C. Cir. 1987). Thus, we are not persuaded by Ehrlich that
we must read in an additional causation requirement to avoid interpreting the Montreal
Convention in a manner that would produce absurd results.
To the contrary, it would be odd to require the passenger to prove which mental injuries
in fact were caused by the physical injury as opposed to being caused more generally by the
accident. In our crash-landing hypothetical, a passenger might, for example, be conscious for the
duration of the crash-landing and then realize that he has suffered a grievous injury to his leg.
Perhaps the passenger fears losing the leg for hours or days while he is in the hospital. And
perhaps the passenger, who has a compensable bodily injury (bruised ribs and a broken leg),
suffers mental anguish and other emotional damages—some as a result of the fear of losing the
leg (which surely would be caused by the bodily injury, even if the leg was ultimately not lost),
and some as a result of having experienced the crash-landing.
It would not “favor[] passengers,” Ehrlich, 360 F.3d at 371 n.4, to require the passenger
to prove which mental harms were caused directly by the broken leg as opposed to being caused
more generally by the accident. After all, causation is difficult. Surely, for example, harm such
as insomnia, fear of flying (or other fears), or emotional distress might initially result from the
crash-landing but then be exacerbated by the bodily injury. Would only the portion of harm
traceable and subsequent to the bodily injury be recoverable? Or, what if some of the harm
resulted from the realization of an imminent crash-landing—should that harm be excluded from
recovery because its cause preceded the accident, while harm occurring together with or flowing
from the crash-landing would be recoverable?
No. 16-1042 Doe, et al. v. Etihad Airways Page 29
Thus, at the end of the day, adopting Ehrlich would mean requiring Doe and other
Montreal Convention plaintiffs to prove causation in a way that burdens the injured passenger far
more than the text requires; that would be an anomalous result.
For all these reasons, we decline to adopt Ehrlich.
3. Relevant District Court Cases
We now turn to Jack, the district-court opinion that Ehrlich followed, and which was the
first district-court opinion to analyze the text and history of the Warsaw Convention at any
serious length. Jack followed on the heels of the Supreme Court’s decision in Floyd. In the Jack
case, where fire consumed a plane following an aborted takeoff and crash but all the passengers
survived, the court addressed the question whether Floyd’s bar to recovering purely mental
damages under the Warsaw Convention also meant that mental anguish was recoverable only if
caused by bodily injury. Jack, 854 F. Supp. at 657. The court posited four theories for the
recovery of emotional-distress damages under Article 17:
1. Emotional-distress damages are never recoverable. Id. at 665.
2. Emotional-distress damages are always recoverable as long as the plaintiff has a
bodily injury, even if the bodily injury is wholly unrelated to the emotional distress.
Id. at 665–66 (notably, the court found that this approach “would read emotional
distress as damages resulting from the accident (as opposed to the injury), which is
difficult to do under the wording of Article 17,” although the court did not explain the
difficulty). This theory is broader than our interpretation, in that it allows recovery
for mental injuries that are wholly unrelated to a compensable bodily injury, which
would seem to capture more than just those mental injuries “sustained in case of” a
compensable bodily injury.
3. Emotional-distress damages are recoverable as “an element of the damages for bodily
injury,” but “need not be about the injury,” so long as the distress occurs “at the same
time or later than the bodily injury.” Id. at 666–67 (noting that in a plane crash that
caused an injury, distress about the plane crash would be recoverable so long as it
occurred after the injury, just as federal common law would allow the victim of a
No. 16-1042 Doe, et al. v. Etihad Airways Page 30
racially motivated false arrest to recover for emotional distress subsequent to physical
injuries sustained, and not only for the minor physical injuries). This theory attempts
to limit the scope of recovery to something narrower than what the second theory
would allow, but it does so by reading in a temporal element, which is not supported
by the text of the treaty.
4. Emotional-distress damages are recoverable only if they are “caused by the bodily
injury.” Id. at 667–68. This was the approach Jack settled on and that Ehrlich
adopted.
The problem with this purported tetralemma is that it omits a plausible fifth option—
namely, our conclusion that mental injuries are recoverable if they are caused either by a
compensable bodily injury or by the accident that causes a compensable bodily injury. Thus,
while Jack’s theoretical framework produces an elegant syllogism in support of Jack’s fourth
theory, it is not one that we have reason to follow in interpreting the Montreal Convention. Plus,
as we noted above, Jack expressly acknowledged that its fourth theory “read a causal component
into” the Warsaw Convention. Id. at 668.
Etihad relies not only on Jack but also on Rothschild v. Tower Air, Inc., 1995 WL 71053
(E.D. Pa. Feb. 22, 1995). In Rothschild, a passenger (Joan Rothschild) bound for New York
from Tel Aviv reached into a seatback pocket and—just like Doe—was pricked on the finger by
a hypodermic needle that lay hidden within. Id. at *1. Mrs. Rothschild sued the airline for
damages under the Warsaw Convention and Pennsylvania state law. The airline removed the
case from Pennsylvania state court to federal district court, where Mrs. Rothschild proceeded to
jury trial and won a $10,000 verdict for her injuries. But, although Mrs. Rothschild had been
“permitted to testify about, and recover for, her pain and suffering flowing from the needle prick,
such as any pain and suffering she experienced from the various tests that were performed on
her,” Mrs. Rothschild “was not permitted to testify about her fear of contracting AIDS and/or
hepatitis because she did not show any exposure to these diseases, and permitting recovery under
these circumstances would be purely speculative.” Id. at *2. Mrs. Rothschild contended that the
court improperly prevented her from testifying about her fear of AIDS and hepatitis and she thus
moved for a new trial, presumably in pursuit of a larger damages award; her motion was denied.
No. 16-1042 Doe, et al. v. Etihad Airways Page 31
Etihad relies on the denial of Mrs. Rothschild’s motion for new trial to support its
contention that “fear of AIDS/contagion is too speculative to be recoverable absent actual
exposure.” Appellee’s Br. 20. But, for several reasons, Rothschild does not help Etihad. First,
the Rothschild court expressly applied Pennsylvania state law, rather than the Warsaw
Convention, in determining whether Mrs. Rothschild could recover for fear of contagion. Id. at
*1 n.2, *2. The court noted that the parties “agree[d] that the Warsaw Convention [was]
applicable” but that they had nevertheless based their arguments on Pennsylvania state law. Id.
at *1 n.2. “Due to this apparent uncertainty of the parties as to the applicable law,” the court
stated its intention to “analyze this matter under both the Warsaw Convention and Pennsylvania
law.” Ibid. But the court did not actually apply the Warsaw Convention to determine which of
Mrs. Rothschild’s claims were cognizable; rather, the court cited Jack for the general proposition
that emotional distress was recoverable only if it “related to and flow[ed] from” physical injury,
id. at *1, and the court then turned to various cases decided under Pennsylvania state law to hold
that “in order to recover for the fear of contracting a disease, a plaintiff must show that there has
been some exposure to the disease.” Id. at *2. Whether Pennsylvania state law does or does not
require a plaintiff to prove actual exposure to a disease to recover for fear of contagion is a
question that is not relevant to the matter before us, so this line of reasoning from Rothschild
does not help Etihad.
Second, unlike Doe, Mrs. Rothschild was tested for AIDS only once—the day after the
incident—and the Rothschild court’s denial of her motion for new trial relied on the fact that
“[d]uring the seven months between the injury and trial, Mrs. Rothschild was never again
tested.” Id. at *3. The Rothschild court might thus have had good reason to find, as a matter of
fact, that Mrs. Rothschild’s claimed fear of contagion was too speculative to support additional
damages.
Third, the fact that Mrs. Rothschild proceeded to trial at all would seemingly help Doe
more than it helps Etihad, especially in light of the fact that we are reviewing the district court’s
grant of partial summary judgment. How reasonable or speculative Doe’s fear of contagion was
is not a question of whether Etihad may be liable to Doe but is rather a question of fact (and a
damages question, at that) that is properly resolved at trial rather than at summary judgment.
No. 16-1042 Doe, et al. v. Etihad Airways Page 32
In sum, neither Jack nor Rothschild provides any basis on which to affirm the grant of
partial summary judgment for Etihad.
D. The Montreal Convention in Our Sister Circuits
We now turn to recent Montreal Convention decisions of our sister circuits. Since the
ratification of the Montreal Convention, some of our sister circuits have applied Ehrlich in
deciding Montreal Convention cases, but—so far, at least—they have done so without seriously
considering either the text or the purpose of the Montreal Convention, and they have done so
only in cases in which the outcome was not materially affected by the decision to apply Ehrlich
rather than our interpretation of the text of Article 17(1).
The Eleventh Circuit, for example, affirmed a grant of summary judgment against a
Montreal Convention plaintiff who traveled from Hawaii to Mumbai, India, and was refused
entry (and ordered to return to the United States) by the Indian government for lack of proper
immigration documentation. He subsequently claimed that Korean Air Lines was liable for
various alleged “accidents” including (1) an alleged theft of $2000 cash from him; (2) denial of
access to medicine while his luggage was checked; (3) failure to call a doctor for him while in
Mumbai or in transit in South Korea; (4) failure to provide diabetic meals on the return flight
from Mumbai; (5) “detention” and lack of “proper hydration” in a holding area in South Korea;
and (6) failure to assist him when his legs swelled and caused him to fall. Jacob v. Korean Air
Lines, 606 F. App’x 478, 482 (11th Cir. 2015) (per curiam) (first holding that plaintiff had failed
to prove that any “accident” had happened on board that had caused him a bodily injury, then
holding alternatively that plaintiff’s damages were unrecoverable emotional damages). In
denying recovery for “subsequent physical manifestations of an earlier emotional injury,” the
court quoted Ehrlich’s statement that “mental injuries are recoverable under Article 17 only to
the extent that they have been caused by bodily injuries.” Id. at 482 (quoting Ehrlich, 360 F.3d
at 400).
Jacob does not conduct any analysis of the text of the Montreal Convention; in a
footnote, the opinion notes that “[c]ourts interpreting the Montreal Convention may rely on
authority concerning its predecessor, the Warsaw Convention, where provisions of both
No. 16-1042 Doe, et al. v. Etihad Airways Page 33
conventions are similar.” Ibid. (citing Campbell v. Air Jam. Ltd., 760 F.3d 1165, 1177 (11th
Cir.), cert. denied, 135 S. Ct. 759 (2014)). Notably, in Campbell, on which Jacob relies to
support its adoption of Warsaw caselaw, the plaintiff had failed to state a claim under Article
17(1) of the Montreal Convention because his only claimed damages were economic losses
arising from a delay. Campbell, 760 F.3d at 1167 (“He stated no Article 17 claim, however,
because he did not allege injuries caused by an ‘accident’ . . . .”).
Thus, neither Jacob nor Campbell had reason to consider whether mental damages
accompanying a compensable bodily injury were recoverable under Article 17(1) of the Montreal
Convention. Nor did Jacob’s use of Ehrlich amount to a reasoned decision to adopt Ehrlich as
opposed to a competing approach to recovery for mental anguish under the Montreal
Convention, because there was no “accident” in Jacob in the first place.
In its partial-summary-judgment order, the district court below cited Bassam v. Am.
Airlines, Inc., 287 F. App’x 309, 317 (5th Cir. 2008), an unpublished decision of the Fifth Circuit
in which that court cited Ehrlich to support the proposition that “courts have held that emotional
injuries are not recoverable under Article 17 of the Montreal Convention or Warsaw Convention
unless they were caused by physical injuries.” Bassam, 287 F. App’x at 317 (emphasis added).
But Bassam was a case in which the plaintiff’s only claimed injuries were emotional and not
physical: in Bassam, the plaintiff sued the airline because one of her checked bags was lost for
several months during which time the plaintiff suffered “embarrassment and upset of not being
able to dress and appear in public as was her prior practice.” Id. at 311. Indeed, the Bassam
opinion itself makes clear that in citing Ehrlich, Bassam was not deliberately interpreting “in
case of” to mean “caused by” (that is, Bassam was not deliberately adopting Ehrlich to define “in
case of” in the Montreal Convention), but rather was establishing that the plaintiff could not
show any accident or bodily injury that would be required to recover for emotional injuries under
Article 17(1) of the Montreal Convention:
Bassam has not alleged any physical injury. Moreover, even if her claim of
“embarrassment and upset” could be construed as such, that injury was not caused
by an accident on board the aircraft or in the course of embarking or
disembarking. Therefore, Bassam has failed to establish carrier liability for
emotional distress damages under Article 17(1).
No. 16-1042 Doe, et al. v. Etihad Airways Page 34
Id. at 317. Etihad’s reliance on Bassam, and the district court’s use of Bassam to support its
grant of partial summary judgment in this case, are thus unfounded.17
Finally, it is worth noting that some courts have looked to the relative histories of the
Warsaw and Montreal Conventions to support reaching a different conclusion under the
Montreal Convention than what the Warsaw Convention might have dictated. See Pierre-Louis
v. Newvac Corp., 584 F.3d 1052, 1058, 1058 n.7 (11th Cir. 2009) (affirming the dismissal of
Montreal Convention claims on forum non conveniens grounds when parallel Warsaw
Convention claims would not have been subject to such dismissal; distinguishing the instant case
from “cases [that] involved interpretation of the Warsaw Convention, a predecessor to the
Montreal Convention drafted in 1929, at which time forum non conveniens, in its current form,
was not recognized under U.S. law”).
E. Relevant Foreign Law
When we interpret a treaty provision, “the opinions of our sister signatories [are] entitled
to considerable weight.” Saks, 470 U.S. at 404 (quoting Benjamins v. British European Airways,
572 F.2d 913, 919 (2d Cir. 1978)); see also Husain, 540 U.S. at 660 (Scalia, J., dissenting) (“We
can, and should, look to decisions of other signatories when we interpret treaty provisions.
Foreign constructions are evidence of the original shared understanding of the contracting
parties.”).
Most Montreal Convention litigation in the European courts has involved the interplay
between the Convention and various European Union Regulations, specifically in cases of delays
and lost baggage. See, e.g., Case C-94/14, Flight Refund Ltd v. Deutsche Lufthansa AG,
17
Other than Bassam, the only other Montreal Convention case cited by the district court is Baah v. Virgin
Atl. Airways, 473 F. Supp. 2d 591, 595–56 (S.D.N.Y. 2007). The court cited Baah to support the proposition that
“[c]ourts routinely look to legal precedent interpreting the Warsaw Convention for substantively equivalent
provisions of the Montreal Convention.” But Baah dismissed the plaintiff’s claims for lack of subject-matter
jurisdiction, and the “substantively equivalent provisions” of the Warsaw and Montreal Conventions that Baah
analyzed were the jurisdictional requirements in each treaty (and specifically the phrase “place of destination” in
each)—not Article 17, and not any provision that would be subject to reinterpretation in light of the ratification of
the Montreal Convention. All the cases cited by the district court other than Bassam and Baah are Warsaw
Convention decisions.
No. 16-1042 Doe, et al. v. Etihad Airways Page 35
2016 E.C.R. 148 (Court of Justice) (delay-compensation claim); Case C-63/09, Walz v. Clickair
SA, 2010 E.C.R. I-4239 (Court of Justice) (lost-baggage claim). But some cases have involved
the interpretation of Article 17(1). The Supreme Court of the United Kingdom has reaffirmed,
for example, that “injury to feelings . . . related to [a passenger’s] treatment during the process of
embarkation and during the flight, which made him feel humiliated” is not a “bodily injury”
under Article 17(1) of the Montreal Convention. Hook v. British Airways Plc [2014] UKSC 15,
2014 WL 795206, at *6.
One Canadian court, engaging in a mode of analysis substantially similar to ours in this
case, applied Floyd and considered Ehrlich in declining to interpret “bodily injury” in Article
17(1) of the Montreal Convention to include purely psychological injuries caused by an
emergency landing. Plourde, 2007 QCCA 739, at para. 29.
None of these cases, however, confronted the question of whether mental anguish that
accompanies a compensable bodily injury, rather than only mental anguish caused by a bodily
injury, is recoverable under Article 17(1).
Indeed, the only foreign case we can find that has confronted that question is a decision
of a trial court in British Columbia, which—citing Floyd and Ehrlich favorably—required a
“sufficient causal link” between the bodily injury and the mental injury in order for the mental
injury to be compensable:
In some cases, the causal link between the bodily injury and the mental injury will
be clear. For example, an airline passenger who suffers burns on his or her face
as a result of an aircraft fire will undoubtedly suffer mental anguish. So long as
the bodily injury is proven, the mental injury proven to have been caused by it
will be compensable.
Wettlaufer v. Air Transat A.T. Inc., 2013 BCSC 1245, para. 82 (2013) (where a passenger aboard
an Air Transat flight from Vancouver to Cancun was struck by “an unsecured food cart” upon
landing, the passenger recovered money damages under Article 17(1) to compensate her for both
her bodily injury and the emotional damages resulting from her fear of being “bumped” while
driving or walking in public, but not to compensate for fear of flying “because there is not a
sufficient causal link between such a fear and the whiplash-type injury” sustained).
No. 16-1042 Doe, et al. v. Etihad Airways Page 36
Despite Wettlaufer’s “sufficient causal link” language, the relief ordered in Wettlaufer is
entirely consistent with the relief Doe seeks here and with our interpretation of Article 17(1): the
“accident” that harmed Wettlaufer was being struck by the food cart, her “bodily injury”
included the resulting bruises on her back and neck, and her recoverable emotional damages—
fear of being “bumped”—seemingly must have been caused not by the bruises themselves, but
from the fact that she was bumped by a food cart (that is—again, despite the language used by
the court—her emotional damages were caused by the accident that caused the bodily injury, and
those emotional damages were nevertheless recoverable). Further, denying Wettlaufer’s
recovery for fear of flying is consistent with the text of Article 17(1) as well, because fear of
flying might not be the sort of fear “sustained in case of” bruises caused by a runaway food cart.
Wettlaufer does not seriously explore the language “damage sustained in case of,” and it is only
the decision of a provincial trial court rather than a sister signatory’s high court. Even if we were
to accord it the same weight as a decision of a high court, however, it would not give us reason to
believe that our decision today is at odds with the “shared understanding of the contracting
parties” to the Montreal Convention. Husain, 540 U.S. at 660.
F. The Montreal Convention Imposes Liability for Emotional and
Mental Harms Accompanying a Compensable Bodily Injury
In light of the foregoing discussion, we now provide a brief summary of our decision and
its application to Doe’s case. For ease of reference, we state again the full text of Article 17(1)
of the Montreal Convention:
The carrier is liable for damage sustained in case of death or bodily injury of a
passenger upon condition only that the accident which caused the death or injury
took place on board the aircraft or in the course of any of the operations of
embarking or disembarking.
Montreal Convention art. 17(1).
To prevail on a claim for damages under Article 17(1), a plaintiff must prove that
(1) there was an “accident,” defined as “an unexpected or unusual event or happening that is
external to the passenger,” Saks, 470 U.S. at 405; (2) the accident happened either “on board the
aircraft” or during “the operations of embarking or disembarking”; and (3) the accident caused
“death or bodily injury of a passenger.” The carrier is then liable for damage sustained, which
No. 16-1042 Doe, et al. v. Etihad Airways Page 37
we interpret to include emotional or mental damages, so long as they are traceable to the
accident, regardless of whether they are caused directly by the bodily injury.
A simple example serves to illustrate our understanding. Consider a case in which an
overhead bin unexpectedly opens in flight, causing a suitcase to fall out and strike a passenger in
the eye. The passenger might sustain bodily injury—bruises, broken or fractured bones, a
concussion, etc.—and the passenger might sustain mental anguish such as the fear of losing sight
in the injured eye or a fear of being struck by flying objects. The “accident” would be the
suitcase striking the passenger. (The faulty overhead bin or latch, like the airline’s failure to
clean out the seatback pocket in Doe’s case, might be underlying negligence that precipitated the
accident.) The accident happened on board the aircraft. And the accident caused bodily injury.
Thus, the carrier would be liable for the passenger’s damage sustained as the result of being
struck by the suitcase—including such mental anguish as fear of losing sight, even if the
passenger ultimately did not suffer a loss of vision, and even if the fear of losing sight was not
caused directly by a bodily injury.
The following diagram illustrates this result:
Bodily Injury Mental Anguish
[bruises, concussion, [embarrassment caused by
broken bones, etc.] visible bruises, for example]
(compensable) (compensable)
ACCIDENT
[i.e., being struck
by a suitcase]
Mental Anguish
[fear of losing eyesight, fear of being struck by flying objects, etc.]
(also compensable, because it is sustained as a result of an
accident that caused a compensable bodily injury)
Under Etihad’s framework, a plaintiff seeking to recover damages for mental anguish
would instead have to prove that an accident caused bodily injury, which in turn caused the
No. 16-1042 Doe, et al. v. Etihad Airways Page 38
mental anguish. But that framework is neither found in the text of the Montreal Convention nor
supported by the history and purpose of the Montreal Convention, nor do relevant decisions of
the courts of the United States or sister signatories give us reason to adopt Etihad’s
understanding.
Here, the accident was the needle pricking Doe’s finger. The accident happened on board
Etihad’s aircraft. And the accident caused bodily injury, as Etihad has conceded. Etihad is
therefore liable for Doe’s damage sustained, which includes both her physical injury and the
mental anguish that she is able to prove that she sustained. Assuming that, on remand, Doe is
able to prove fear of contagion or other mental anguish, Etihad is liable for damages arising from
that anguish regardless of whether the anguish was directly caused by the physical hole in Doe’s
finger or by the fact that Doe was pricked by a needle. The diagram at page 14, supra, illustrates
this result.
IV
Michigan Damages Laws Govern the Measure of Doe’s Recovery
and Any Recovery by Doe’s Husband for Loss of Consortium
Having determined that the Montreal Convention does not preclude Etihad’s liability for
Doe’s mental-anguish claims, we turn to the choice-of-law question of whose law governs the
measure of any recovery to which Doe is entitled. Although the district court did not expressly
(or implicitly) address this question in its order granting partial summary judgment, the question
was raised in the parties’ summary-judgment pleadings below. On appeal, Plaintiffs’ brief
includes a lengthy discussion of whether federal common law or Michigan law determines the
extent of Doe’s recovery for mental anguish. Appellants’ Br. 23–29. Etihad responds at even
greater length in its brief. Appellee’s Br. 26–37. For the reasons that follow, Michigan law
governs both the measure of Doe’s recovery and the ability of Doe’s husband to recover
damages for loss of consortium.
Article 29 of the Montreal Convention clarifies that actions under Article 17(1), such as
Plaintiffs’ action, are brought “without prejudice to the question as to who are the persons who
have the right to bring suit and what are their respective rights.” Montreal Convention art.
No. 16-1042 Doe, et al. v. Etihad Airways Page 39
29 (emphasis added). As we discussed in Section III.C.1, supra, the United States Supreme
Court has held that the effect of the parallel provision in the Warsaw Convention (Article 24) is
to leave to the domestic law of the contracting parties the determination of how a successful
plaintiff’s damages are measured. See Zicherman, 516 U.S. at 224–26. Lower courts have
consistently applied Zicherman to hold that the measure of damages is to be fixed according to
whatever law (i.e., according to whatever choice-of-law rules) would apply in a domestic-law
case, and Zicherman is one of the Warsaw Convention “precedents” that guides our
interpretation of the Montreal Convention. See Section III.A & n.11, supra; see also Pescatore
v. Pan Am World Airways, Inc., 97 F.3d 1, 4–5 (2d Cir. 1996) (applying Zicherman to reject the
argument that a uniform “federal common law” should provide the measure of damages for
plaintiffs bringing claims on behalf of victims killed in the bombing of Pan Am Flight 103 over
Lockerbie, Scotland, and instead conducting a choice-of-law analysis to conclude that Ohio
damages laws applied and that Ohio law allowed plaintiffs to recover damages for loss of
society, support, and services, and for grief).
In this case, then, the district court should measure Doe’s damages by whatever law
would apply to an analogous case in the Eastern District of Michigan. An analogous case would
be a diversity action for personal-injury damages. A federal court exercising diversity
jurisdiction applies the choice-of-law rules of the state in which it sits. Klaxon Co. v. Stentor
Elec. Mfg. Co., 313 U.S. 487, 496 (1941). And “a federal court in a diversity action is obligated
to apply the law it believes the highest court of the state would apply if it were faced with the
issue.” Mahne v. Ford Motor Co., 900 F.2d 83, 86 (6th Cir. 1990).
Our court has previously recognized Michigan’s strong presumption in favor of applying
Michigan law in Michigan courts:
Michigan’s choice of law framework is established in two Michigan Supreme
Court decisions: Olmstead v. Anderson, 428 Mich. 1, 400 N.W.2d 292, 302
(1987), and Sutherland v. Kennington Truck Serv., Ltd., 454 Mich. 274, 562
N.W.2d 466, 471 (1997). In a tort action, Michigan courts recognize a
presumption in favor of lex fori and apply Michigan law “unless a ‘rational
reason’ to do otherwise exists.” Sutherland, 562 N.W.2d at 471. The two-step
test for determining whether such a rational reason exists was distilled in
Sutherland from Olmstead as follows:
No. 16-1042 Doe, et al. v. Etihad Airways Page 40
First, we must determine if any foreign state has an interest in
having its law applied. If no state has such an interest, the
presumption that Michigan law will apply cannot be overcome. If
a foreign state does have an interest in having its law applied, we
must then determine if Michigan’s interests mandate that Michigan
law be applied, despite the foreign interests.
Id.
Standard Fire Ins. Co. v. Ford Motor Co., 723 F.3d 690, 693 (6th Cir. 2013).
Neither party here has asserted a “rational reason” for us to hold that any law other than
Michigan’s damages laws should apply to govern the measure of Plaintiffs’ recovery, including
any recovery by Doe’s husband for loss of consortium. Plaintiffs are Michigan residents, so
there is no reason to apply the substantive law of any state in the United States other than
Michigan. And Etihad has not argued that the law of the United Arab Emirates should apply.
Michigan’s substantive damages laws therefore govern the measure of any recovery that
Plaintiffs win. On remand, assuming Doe wins a judgment, the district court is free to determine,
within the bounds of what Michigan damages laws allow, what specific kinds of damages—such
as emotional distress, mental anguish, fear of contagion, loss of consortium, and so on—
Plaintiffs are entitled to recover, in “grant[ing] the relief to which each party is entitled.” Fed. R.
Civ. P. 54(c).
V
The Warsaw Convention ruled aviation law for more than seventy-five years. Over the
decades, despite various amendments, courts have routinely interpreted the Warsaw Convention
in line with its purpose as drafted in 1929. Etihad urges us to interpret the Montreal Convention
in line with that same purpose.
But the Montreal Convention is not an amendment to the Warsaw Convention. The
Warsaw Convention provided limitations of liability to protect fledgling airlines from litigious
passengers; the Montreal Convention provides limitations of liability to protect (still litigious)
passengers from the not-so-fledgling airlines. To adopt Etihad’s reading of the Montreal
Convention would distort the treaty’s text and would frustrate rather than serve its purpose.
No. 16-1042 Doe, et al. v. Etihad Airways Page 41
Having determined that the Montreal Convention imposes liability for the damages that
Doe has alleged, and that the damages laws of Michigan govern the measure of any judgment
Plaintiffs win, we REVERSE the district court’s partial-summary-judgment order and
REMAND this matter for further proceedings consistent with this opinion.