No. In the Supreme Court of the

 

ETIHAD AIRWAYS P.J.S.C., Petitioner, – v. –

JANE DOE; JOHN DOE, husband and wife,

Respondents. ______ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Andrew J. Harakas Counsel of Record CLYDE & CO US LLP Attorneys for Petitioner The Chrysler Building 405 Lexington Avenue, 16th Floor , New York 10174 Of Counsel: (212) 710-3900 Daniel E. Correll Philip R. Weissman

i

QUESTION PRESENTED Whether Article 17(1) of the Montreal Convention allows recovery for mental or psychic injuries as “damage sustained,” where an “accident” causes a “bodily injury” but the mental or psychic injuries are not caused by or do not flow from the “bodily injury”? ii

PARTIES TO THE PROCEEDING The following persons and entities were parties before the United States Court of Appeals for the Sixth Circuit: 1. Petitioner Etihad Airways P.J.S.C. 2. Respondents Jane Doe and her husband John Doe. Pursuant to Order dated October 29, 2013, the District Court granted Respondents’ Ex Parte Motion for a Protective Order and permitted Respondents to maintain the action using pseudonyms “Jane Doe and John Doe” in place of their true identities. Order Granting Ex Parte Motion for Protective Order, Doe v. Etihad Airways, No. 13-14358, Docket Entry No. 5. (E.D. Mich. Oct. 29, 2013). iii

RULE 29.6 CORPORATE DISCLOSURE STATEMENT Etihad Airways P.J.S.C. is a corporate entity organized and existing under the laws of the (“UAE”). At the time this action was filed in the District Court, Etihad Airways P.J.S.C. was wholly owned by the Government of Abu Dhabi, a political subdivision of the UAE. On June 17, 2015, Etihad Group P.J.S.C. was formally incorporated under UAE law and currently owns 100% of Etihad Airways P.J.S.C. There is no publicly held company owning 10% or more of the Etihad Airways P.J.S.C.’s stock.

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TABLE OF CONTENTS Page QUESTION PRESENTED ...... i PARTIES TO THE PROCEEDING ...... ii RULE 29.6 CORPORATE DISCLOSURE STATEMENT ...... iii TABLE OF AUTHORITIES ...... ix OPINIONS BELOW ...... 1 STATEMENT OF THE BASIS FOR JURISDICTION ...... 1 TREATY PROVISIONS INVOLVED ...... 2 STATEMENT OF THE CASE A. The Nature of the Case ...... 3 B. Statement of the Relevant Facts ...... 4 C. The Decision of the District Court ...... 6 D. The Decision of the Court of Appeals ...... 7 REASONS FOR GRANTING THE WRIT ...... 9 I. THE DECISION BELOW CONFLICTS WITH THE ELEVENTH AND FIFTH CIRCUITS BECAUSE IT ALLOWS THE RECOVERY OF MENTAL INJURIES EVEN IF THEY ARE UNRELATED TO THE BODILY INJURY...... 13 vi

A. The Eleventh Circuit Jacob Decision ...... 13 B. The Fifth Circuit Bassam Decision ...... 15 C. The Sixth Circuit Decision Below .... 16 II. THE DECISION BELOW CONFLICTS WITH THE COURT’S DECISIONS IN FLOYD AND ZICHERMAN AND THE PLAIN TEXT OF ARTICLE 17(1) ...... 18 A. The Decision Below Allowing Recovery of Mental Injuries as “Damages Sustained” Conflicts with Floyd and Zicherman ...... 19 B. The Decision Below Creates a New Causation Requirement Not Supported by the Text of Article 17(1) ...... 21 III. THE QUESTION PRESENTED IS IMPORTANT AS THE COURT BELOW REJECTED THE WELL-SETTLED CONVENTION RULE REQUIRING A CAUSAL CONNECTION BETWEEN THE BODILY AND MENTAL INJURY DESPITE THE EXPRESS INTENT OF THE DRAFTERS TO PRESERVE WARSAW PRECEDENT ...... 23 IV. THE DECISION BELOW CONFLICTS WITH THE DECISIONS OF OTHER STATE PARTIES TO THE MONTREAL CONVENTION ...... 27 vii

CONCLUSION ...... 29 APPENDIX Order Denying Petition for Rehearing en banc from the United States Court of Appeals, Sixth Circuit (October 6, 2017) ...... 1a Judgment from the United States Court of Appeals, Sixth Circuit (August 30, 2017) ...... 3a Opinion Reversing the District Court’s Partial- Summary Judgment Order and Remanding this Matter for Further Proceedings from the United States Court of Appeals, Sixth Circuit (August 30, 2017) ...... 5a Opinion and Order Granting Defendant’s Motion for Partial Summary Judgment from the United States District Court for the Eastern District of Michigan (October 13, 2015) ...... 65a Stipulation and Order of Dismissal With Prejudice and Without Costs from the United States District Court for the Eastern District of Michigan (December 16, 2015) ..... 71a Convention for the Unification of Certain Rules for International Carriage by Air Done at Montreal on the 28th day of May, 1999 (Montreal Convention) ...... 75a

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TABLE OF AUTHORITIES Page(s) Cases Air v. Saks, 470 U.S. 392 (1985) ...... 10n.3, 27 Alvarez v. Am. , Inc., 1999 WL 691922 (S.D.N.Y. Sept. 7, 1999) ...... 10-11n.6, 26 American Airlines v. Georgeopoulos (No 2), [1998] N.S.W.C.A. 273 () ...... 27 Bassam v. Am. Airlines, Inc., 287 F. App’x 309 (5th Cir. 2008) ...... 12, 15, 16 Booker v. BWIA West Indies Airways Ltd., 2007 WL 1351927 (E.D.N.Y. May 8, 2007), aff’d, 307 F. App’x 491 (2d Cir. 2009) ...... 12 Carey v. , 255 F.3d 1044 (9th Cir. 2001)...... 12n.8 Eastern Air Lines v. Floyd, 499 U.S. 530 (1991) ...... passim Ehrlich v. Am. Airlines, Inc., 360 F.3d 366 (2d Cir. 2004) ...... passim El Al Airlines, Ltd. v. Tseng, 525 U.S. 155 (1999) ...... 10n.3, 20, 21 In re Air Crash at Little Rock Ark., on June 1, 1999, 291 F.3d 503 (8th Cir. 2002), cert. denied sub nom., Lloyd v. Am. Airlines, Inc., 537 U.S. 974 (2002) ...... 10n.5, 11, 20 x

In re Air Crash at Taipei, Taiwan on October 31, 2000, 2004 WL 5642007 (C.D. Cal. Sept. 3, 2004) .... 10n.6 In re Aircrash Disaster Near Roselawn, Ind., on Oct. 31, 1994, 954 F. Supp. 175 (N.D. Ill. 1997) ...... 11, 23, 27 In re Inflight Explosion on Trans World Airlines, Inc. Aircraft Approaching Athens, on Apr. 2, 1986., 778 F. Supp. 625 (E.D.N.Y. 1991), rev’d sub nom. on other grounds Ospina v. Trans World Airlines, Inc., 975 F.2d 35 (2d Cir. 1992) ...... 11n.6 Jack v. Trans World Airlines, Inc., 854 F. Supp. 654 (N.D. Cal. 1994) ...... 11n.6 Jacob v. Korean Air Lines Co., 136 S. Ct. 267 (2015) ...... 14 Jacob v. Korean Air Lines Co., 606 F. App’x 478 (11th Cir. 2015), cert. denied, 136 S. Ct. 267 (2015) ...... passim Katin v. Air France-KLM, S.A., 2009 WL 1940363 (E.D. Tex. Jul. 2, 2009) .... 12 King v. Bristow Helicopters Ltd., UKHL 7, [2002] 2 A.C. 628 (U.K.) ...... 27 Kruger v. United Air Lines, Inc., 481 F. Supp. 2d 1005 (N.D. Cal. 2007) ...... 12 Kruger v. Virgin Atl. Airways, Ltd., 976 F. Supp. 2d 290 (E.D.N.Y 2013), aff’d, 578 F. App’x 51 (2d Cir. 2014) ...... 12 xi

Ligeti v. British Airways PLC, 2001 WL 1356238 (S.D.N.Y. Nov. 5, 2001) .... 10n.6 Longo v. Air France, 1996 WL 866124 (S.D.N.Y. Jul. 25, 1996) ...... 11n.6, 19, 26 Naqvi v. Turkish Airlines, Inc., 80 F. Supp. 3d 234 (D.D.C. 2015) ...... 12 Olympic Airways v. Husain, 540 U.S. 644 (2004) ...... 10n.3 Pel-Air Aviation Pty Ltd v. Casey, [2017] NSWCA 32 (Australia) [2017] ...... 28 Plourde v. Service Service aérien F.B.O. inc. (Skyservice), 2007 QCCA 739 () ...... 27 Sanches-Naek v. TAP , Inc., 260 F. Supp. 3d 185 (D. Conn. 2017) ...... 12 Schaefer-Condulmari v. U.S. Airways Grp., LLC, 2012 WL 2920375 (E.D. Pa. Jul. 16, 2012) .... 12 Terrafranca v. Virgin Atl. Airways Ltd., 151 F.3d 108 (3d Cir. 1998) ...... 12n.8 Vumbaca v. Terminal One Grp. Ass’n L.P., 859 F. Supp. 2d 343 (E.D.N.Y. 2012) ...... 12 Wencelius v. Air France, Inc., 1996 WL 866122 (C.D. Cal. Feb. 29, 1996) .... 11n.6 Wettlaufer v. Air Transat A.T. Inc., 2013 BCSC 1245 (Canada) ...... 28 Zicherman v. Korean Air Lines Co., Ltd., 516 U.S. 217 (1996) ...... passim xii

Treaties and Statutes Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999, ICAO Doc. No. 9740 (entered into force November 4, 2003), reprinted in S. Treaty Doc. 106-45, 1999 WL 33292734 (“Montreal Convention”) ...... passim Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No 876 (1934) (reprinted in note following 49 U.S.C.A. § 40105 (1997)) (“”) ...... passim Foreign Sovereign Immunities Act, Pub. L. 94–583, 90 Stat. 2891 (1976) ...... 3 28 U.S.C. § 1254(1) ...... 1 28 U.S.C. § 1291 ...... 3 28 U.S.C. § 1330(a) ...... 3 28 U.S.C. § 1331 ...... 3 28 U.S.C. § 1603(a) ...... 3 Other Authorities Brief for the United States as Amicus Curiae, 2003 WL 23497831 (2d Cir. Aug. 18, 2003) (No. 02-9462) ...... 12, 24 Letter of Submittal, S. Treaty Doc. No. 106-45, 1999 WL 33292734 (2000) ...... 25 Petition for a Writ of Certiorari, 2015 WL 4776723 (U.S. Aug. 11, 2015) (No. 15-194) .... 14 xiii

Plaintiffs-Appellants’ Brief on Appeal, 2016 WL 1380931 (6th Cir. Apr. 4, 2016) (No. 16-1042) ...... 10n.4 S. Exec. Rep. No. 108-8 (2003) ...... 17, 25 1

Petitioner Etihad Airways P.J.S.C. (“Etihad”) respectfully petitions for a writ of certiorari issue to review the judgment and opinion of the United States Court of Appeals for the Sixth Circuit entered on August 30, 2017. OPINIONS BELOW The Opinion of the Court of Appeals for the Sixth Circuit is officially reported at 870 F.3d 406 (6th Cir. Aug. 30, 2017) and is reproduced in Appendix (“A”) hereto at A 5a-64a. The Order of the Court of Appeals for the Sixth Circuit denying Rehearing and Rehearing En Banc was entered on October 6, 2017, is not officially reported, and is reproduced at A 1a. The Opinion and Order Granting Defendant’s Motion for Partial Summary Judgment of the District Court is unofficially reported at 2015 WL 5936326 (E.D. Mich. Oct. 13, 2015) and is reproduced at A 65a- 70a. The Stipulation and Order of Dismissal with Prejudice of the District Court was entered on December 16, 2016 and is reproduced at A 71a-74a. STATEMENT OF THE BASIS FOR JURISDICTION The Judgment and Opinion of the Court of Appeals for the Sixth Circuit were entered on August 30, 2017. A 3a, 5a. The Order of the Court of Appeals for the Sixth Circuit denying Rehearing and Rehearing En Banc was entered on October 6, 2017 (A 1a), and this Petition has been filed within 90 days of that date. The jurisdiction of the Court is invoked under 28 U.S.C. § 1254(1). 2

TREATY PROVISIONS INVOLVED The applicable treaty provision involved is Article 17(1) of the Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999, ICAO Doc. No. 9740 (entered into force Nov. 4, 2003), reprinted in S. Treaty Doc. 106-45, 1999 WL 33292734 (“Montreal Convention”). The full text of the Montreal Convention is reproduced at A 75a-108a. Also relevant is Article 17 of the Warsaw Convention1, the predecessor treaty of the Montreal Convention, as the terms of Article 17(1) of the Montreal Convention are materially identical to the terms of Article 17 of the Warsaw Convention. Article 17 of the Warsaw Convention reads: The carrier shall be liable for damage sustained in the event of the death or wounding of a 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. 3018.

1 Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No 876 (1934) (reprinted in note following 49 U.S.C.A. § 40105 (1997)) (“Warsaw Convention”). 3

STATEMENT OF THE CASE A. The Nature of the Case Plaintiffs-Respondents Jane Doe and her husband filed an action against Etihad seeking to recover damages for injuries allegedly sustained by Doe while a passenger on Etihad Flight EY151 from Abu Dhabi, UAE to Chicago on August 6, 2013. A 9a. Doe claimed that during the flight as she reached into the seatback pocket of an adjacent seat, her left hand came into contact with a hypodermic needle. A 6a. Doe sought to recover 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. A 7a. The crux of Doe’s claim was her fear of potentially contracting HIV/Hepatitis following contact with the hypodermic needle. Id. Her husband claimed loss of consortium. A 7a. Plaintiffs-Respondents filed the action in the United States District Court for the Eastern District of Michigan on October 15, 2013, based upon 28 U.S.C. § 1331 (federal question) as this action is governed exclusively by the Montreal Convention. A 9a. Jurisdiction also existed pursuant to 28 U.S.C. § 1330(a) because Etihad was a foreign state as defined by 28 U.S.C. § 1603(a) and, thus, subject to the provisions of the Foreign Sovereign Immunities Act, Pub. L. 94–583, 90 Stat. 2891 (1976). Id. The jurisdiction of the Court of Appeals was based upon 28 U.S.C. § 1291. It is undisputed that the liability of Etihad is governed exclusively by the Montreal Convention as the incident occurred during the course of “international carriage” by air within the meaning of 4

Article 1 of the Convention. See Montreal Convention, Article 1 (A 76a).2 As with Article 17 of the Warsaw Convention, Article 17(1) of the Montreal Convention creates air carrier liability for bodily injury where (1) there has been an “accident,” which (2) caused the “bodily injury,” and (3) the accident took place on board the aircraft or during embarking or disembarking. A 84a; see Eastern Air Lines v. Floyd, 499 U.S. 530, 535-36 (1991). This Petition presents the legal question of whether, as a matter of treaty law, the phrase “bodily injury” in Article 17(1) of the Montreal Convention allows for recovery of mental injuries if unconnected to the bodily injury. B. Statement of the Relevant Facts The following facts, as set forth by the Court of Appeals, are not disputed. Jane Doe and her eleven-year-old daughter were traveling on Etihad round-trip from Chicago to Bengaluru, , with a scheduled stop in Abu Dhabi, UAE. A 6a. After Flight EY151 in Abu Dhabi for their flight to Chicago and while seated, the knob which holds the tray table in an upright position on the back of the seat in front of Doe fell to the floor. A 6a. Doe’s daughter picked up the knob from the floor and handed it to Doe who then dropped the knob into the small mesh seatback pocket in front of her

2 Doe’s alleged injuries were sustained during “international carriage” by air because her place of departure and place of destination were situated within the territory of a State Party (the United States), and there was an agreed stopping place within the territory of another State (UAE and India). See Montreal Convention, Article 1(2) (A 76a). 5 daughter’s seat. A 6a. For the duration of the 14-hour flight, Doe was unable to stow her tray table in the upright position. A 6a. When it came time to descend for landing in Chicago, an Etihad (unaware of the detached knob) provided Doe with the familiar reminder to place her tray table in the upright and locked position for landing. A 6a. Doe could not comply and then reached into the seatback pocket to retrieve the fallen knob to aid in explaining the problem. A 6a. But, when she reached into the pocket, she was unexpectedly pricked by a hypodermic needle from an insulin syringe that was in the seatback pocket. A 6a, 8a. She immediately pulled her hand out of the small seatback pocket and placed it on the tray table where she saw a drop or two of blood from her finger. A 6a. When Doe was pricked by the needle, the passenger seated in the aisle seat to her right heard her exclaim, “ouch,” and claims he saw her finger bleeding. A 8a. Doe advised an Etihad flight attendant that she had been pricked by a needle. A 8a. The flight attendant returned with her supervisor who gave Doe an antiseptic wipe, which she used to wipe her finger, and a Band-Aid, which the supervisor himself wrapped around her finger. A 8a. The cabin manager wrote a report of the incident and a flight attendant recommended that Doe see a doctor. A 8a. The next day, Doe saw a family physician, who noted a “small needle poke” on her finger. A 8a. She was prescribed medication for possible exposure to hepatitis, tetanus, and HIV, and underwent several rounds of testing over the following year. A 8a. All tests came back negative. A 8a. Nevertheless, Doe claimed that she refrained from sexual intercourse 6 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. A 9a. Doe declined Etihad’s offer to reimburse her for medical expenses shortly after the incident and filed suit on October 15, 2013. A 9a. C. The Decision of the District Court Upon the conclusion of discovery, Etihad filed a motion for partial summary judgment seeking dismissal of Doe’s claim for mental injuries relating to her fear of contracting a communicable disease as not recoverable under the Montreal Convention or, alternatively, Michigan law. A 10a. Etihad also moved to dismiss the derivative claim for loss of consortium by Doe’s husband. Etihad did not dispute that an Article 17 “accident” caused Doe to suffer a “bodily injury.” Rather, Etihad argued that Doe’s claims for mental injuries for fear of contagion were not recoverable as they were not caused by the “bodily injury” (the small hole in her finger) but by the nature of the instrumentality of that injury (the needle). A 10a. In the alternative, Etihad argued that even if Doe’s mental injuries for fear of contagion satisfied the Article 17(1) “bodily injury” requirement, damages for such mental injuries were not “legally cognizable” under Michigan law, the applicable domestic damage law. A 11a, 60a. The District Court agreed and granted partial summary judgment in favor of Etihad. Relying on the rule adopted by all Circuit Courts addressing this issue under the Montreal and Warsaw Conventions, 7 the District Court held that: (a) recovery for mental injuries is permitted only to the extent the distress is caused by the physical injuries sustained, and (b) Plaintiff’s mental distress damages were not caused by her physical injury. A 68a. The court reasoned: 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. Plaintiff’s emotional distress damages are not available under the Montreal Convention, which provides the exclusive remedy. See El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 161 (1999) (recovery for injury suffered on board aircraft “if not allowed under the Convention, is not available at all.”). A 68a. In light of this holding, the District Court did not reach Etihad’s alternative argument that such damages were not “legally cognizable” under Michigan law. A 60a. Following the Court’s ruling, the parties reached a settlement of the remaining claims for bodily injury, physical pain and suffering and economic damages. A final Order dismissing the case was entered on December 16, 2015 (A 71a-74a), and Plaintiffs- Respondents appealed. D. The Decision of the Court of Appeals The Court of Appeals reversed the District Court’s partial summary judgment order. Rejecting Montreal Convention precedent from the Fifth and Eleventh Circuits and Warsaw Convention precedent from the Second and Eighth Circuits holding that only mental injuries caused by a bodily injury are recoverable, the 8

Court below found that “mental injuries are recoverable [as “damage sustained”] if they are caused either by a compensable bodily injury or by the accident that causes a compensable bodily injury.” A 48a-49a. The Court of Appeals summarized its holding as follows: 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, 105 S.Ct. 1338; (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 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 58a (emphasis in original). Having concluded that the Convention is not a bar to Doe’s claims for mental injuries, the Court below followed the Court’s decision in Zicherman v. Korean Air Lines Co., Ltd., 516 U.S. 217, 230 (1996), and found that “Michigan’s substantive damages laws … govern the measure of any recovery” and remanded the case to the District Court “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….” A 63a. 9

Etihad’s Petition for Panel Rehearing and Rehearing En Banc was denied by the Court below on October 6, 2017. A 1a. REASONS FOR GRANTING THE WRIT As with the Warsaw Convention, Article 17(1) of the Montreal Convention “sets forth conditions under which an international air carrier can be held liable for injuries to .” Floyd, 499 U.S. at 532–33. Article 17(1), which is materially identical to Warsaw Article 17, reads: 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. A 84a. Thus, as with the Warsaw Convention, carrier liability under the Montreal Convention only arises if an “accident” causes the “death or bodily injury” of a passenger. In Floyd, 499 U.S. 530, the Court analyzed the meaning of “bodily injury” as used in Article 17 of the Warsaw Convention and held that carriers could not be held liable for purely mental injuries because of the absence of the required “death or bodily injury.” However, the Court “express[ed] no view as to whether passengers can recover for mental injuries that are accompanied by physical injuries.” Id. at 552. The issue in this case presents the question left open by the Court in Floyd under the Warsaw Convention. Neither the Court below nor Respondents disputed the continued applicability of Floyd or any other of 10 this Court’s decisions3 interpreting the Warsaw or Montreal Conventions.4 See A 42a. Rather, the Court below rejected the post-Floyd cases limiting recovery for mental injury to those flowing from the bodily injury. The post-Floyd courts uniformly agreed that Article 17 of the Warsaw Convention does not completely prohibit recovery for mental injuries when there is a requisite bodily injury, but the courts differed as to the circumstances under which such injuries were recoverable. The mainstream view that quickly emerged and was adopted by all post-Floyd Circuit Courts of Appeal5 and most District Courts6 is that Article 17

3 See Air France v. Saks, 470 U.S. 392 (1985) (interpreting Article 17 term “accident”); Zicherman, 516 U.S. 217 (interpreting Article term 17 “damage sustained” and effect of Article 24); El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155 (1999) (interpreting Articles 17 and 24 to find the Convention exclusive); Olympic Airways v. Husain, 540 U.S. 644 (2004) (interpreting Article 17 “accident” to include failure to assist ailing passenger). 4 Indeed, in the Court below, Respondents never challenged the mainstream view and simply argued that “Doe’s mental injuries, including her fear-of-disease, mental anguish, emotional distress, loss of certain pleasures of life, humiliation, and outrage, all ‘result from,’ ‘flow from’ or are ‘caused by’ the needlestick….” Plaintiffs-Appellants’ Brief on Appeal, 2016 WL 1380931 at 22 (6th Cir. Apr. 4, 2016)(No. 16-1042). 5 Ehrlich v. Am. Airlines, Inc., 360 F.3d 366, 400 (2d Cir. 2004); In re Air Crash at Little Rock Ark., on June 1, 1999, 291 F.3d 503, 510 (8th Cir.), cert. denied sub nom., Lloyd v. Am. Airlines, Inc., 537 U.S. 974 (2002). 6 See In re Air Crash at Taipei, Taiwan on October 31, 2000, 2004 WL 5642007 (C.D. Cal. Sept. 3, 2004); Ligeti v. British Airways PLC, 2001 WL 1356238, at *4 (S.D.N.Y. Nov. 5, 2001); Alvarez v. 11 allows recovery for mental injuries only if they are caused by or proximately flow from the “bodily injury” caused by the “accident.” The Court below expressly rejected Ehrlich v. Am. Airlines, Inc., 360 F.3d 366 (2d Cir. 2004) and did not address In re Air Crash at Little Rock Ark., on June 1, 1999, 291 F.3d 503, 509 (8th Cir.), cert. denied sub nom., Lloyd v. Am. Airlines, Inc., 537 U.S. 974 (2002). The lone ruling to the contrary was In re Aircrash Disaster Near Roselawn, Ind., on Oct. 31, 1994, 954 F. Supp. 175, 178-79 (N.D. Ill. 1997), which held that “bodily injury” is merely a threshold requirement that, once established, allows the plaintiff to recover for all mental injuries whether or not those mental injuries were caused by some physical injury incurred in the accident. The Roselawn holding, which is similar to that of the Court below, has been rejected by all appellate courts7 and is contrary to the interpretation of Article 17 advanced by the United States in the Amicus brief filed in Ehrlich that Article 17 of the Warsaw Convention “allows for recovery of damages arising out of a bodily injury sustained in an accident including any mental injuries that may arise from

Am. Airlines, Inc., 1999 WL 691922, at *5 (S.D.N.Y. Sept. 7, 1999); Longo v. Air France, 1996 WL 866124, at *2 (S.D.N.Y. Jul. 25, 1996); Wencelius v. Air France, Inc., 1996 WL 866122, at *1 (C.D. Cal. Feb. 29, 1996); Jack v. Trans World Airlines, Inc., 854 F. Supp. 654, 668 (N.D. Cal. 1994); In re Inflight Explosion on Trans World Airlines, Inc. Aircraft Approaching Athens, Greece on Apr. 2, 1986., 778 F. Supp. 625, 637 (E.D.N.Y. 1991), rev’d sub nom. on other grounds Ospina v. Trans World Airlines, Inc., 975 F.2d 35 (2d Cir. 1992). 7 See Ehrlich, 360 F.3d at 387-88; Little Rock, 291 F.3d at 510. 12 that bodily injury, such as pain and suffering or other emotional distress (if permitted by local law.”). Brief for the United States as Amicus Curiae, 2003 WL 23497831, *18 (2d Cir. Aug. 18, 2003) (No. 02-9462). All courts interpreting the Montreal Convention have continued to follow the mainstream view and find that mental injuries are not recoverable under Article 17(1) of the Montreal Convention unless they were caused by physical injuries. See Jacob v. Korean Air Lines Co., 606 F. App’x 478, 482 (11th Cir. 2015), cert. denied, 136 S. Ct. 267 (2015); Bassam v. Am. Airlines, Inc., 287 F. App’x 309, 317 (5th Cir. 2008); Sanches-Naek v. TAP Portugal, Inc., 260 F. Supp. 3d 185, 196 (D. Conn. 2017); Naqvi v. Turkish Airlines, Inc., 80 F. Supp. 3d 234, 241 (D.D.C. 2015); Kruger v. Virgin Atl. Airways, Ltd., 976 F. Supp. 2d 290, 327 (E.D.N.Y 2013), aff’d, 578 F. App’x 51 (2d Cir. 2014); Vumbaca v. Terminal One Grp. Ass’n L.P., 859 F. Supp. 2d 343, 365 (E.D.N.Y. 2012); Schaefer-Condulmari v. U.S. Airways Grp., LLC, 2012 WL 2920375, at *3 (E.D. Pa. Jul. 16, 2012); Katin v. Air France-KLM, S.A., 2009 WL 1940363, at *3 (E.D. Tex. Jul. 2, 2009); Booker v. BWIA West Indies Airways Ltd., 2007 WL 1351927, at *4 (E.D.N.Y. May 8, 2007), aff’d, 307 F. App’x 491 (2d Cir. 2009); Kruger v. United Air Lines, Inc., 481 F. Supp. 2d 1005, 1009 (N.D. Cal. 2007).8

8 Similarly, Circuit Courts to address the issue have held that physical manifestations of emotional and mental distress do not satisfy the “bodily injury” requirement in Article 17. Jacob, 606 F. App’x at 482 (Montreal); Carey v. United Airlines, 255 F.3d 1044, 1052 (9th Cir. 2001) (Warsaw); Terrafranca v. Virgin Atl. Airways Ltd., 151 F.3d 108, 111 (3d Cir. 1998) (Warsaw). 13

The decision of the Court below rejects the above precedent and creates a conflict with the Courts of Appeal for the Eleventh and Fifth Circuits based on an erroneous interpretation of Article 17(1) that is also in conflict with the language of Article 17(1) and the holdings of this Court in Floyd and Zicherman. I THE DECISION BELOW CONFLICTS WITH THE ELEVENTH AND FIFTH CIRCUITS BECAUSE IT ALLOWS THE RECOVERY OF MENTAL INJURIES EVEN IF THEY ARE UNRELATED TO THE BODILY INJURY The decision of the Court below is wrong and needlessly creates a conflict with the decisions of the Courts of Appeal for the Eleventh and the Fifth Circuits, which have held that recovery for mental injuries is not allowed under Article 17(1) of the Montreal Convention unless they were caused by a bodily injury. A. The Eleventh Circuit Jacob Decision In Jacob v. Korean Air Lines Co., 606 F. App’x 478 (11th Cir.), cert. denied, 136 S. Ct. 267 (2015), plaintiff claimed that he suffered various mental, physical (swelling of the legs) and physical manifestation of injuries (aggravation of heart condition and diabetes) as a result of being denied entry into India due to improper documents and his subsequent deportation flights on KAL from India to Hawaii, via Seoul. The Court of Appeals affirmed the grant of summary judgment dismissing the case finding that even assuming that the various incidents plaintiff described properly constituted “accidents” under the Montreal Convention, plaintiff failed to provide 14 medical evidence that any of the alleged “accidents” caused or even contributed to his injuries. 606 F. App’x at 481. Citing Floyd, the Court further found that the claims for mental injuries also were properly dismissed because the Montreal Convention bars purely mental injuries (id.), and plaintiff’s attempts to characterize his physical injuries as manifestations of mental distress were equally unavailing. The Court held: at best, “mental injuries are recoverable under Article 17 only to the extent that they have been caused by bodily injuries.” Ehrlich v. Am. Airlines, Inc., 360 F.3d 366, 400 (2d Cir.2004). Jacob’s causation, however, is backwards—the Convention simply does not provide a remedy for subsequent physical manifestations of an earlier emotional injury. Id. at 481-82. This Court denied Jacob’s Petition for a Writ of Certiorari which presented, inter alia, the question: “Must a physical injury be manifested while on board or in the course of boarding or disembarking an aircraft or may it occur subsequently as long as it can be linked to an accident on board or while boarding or disembarking a flight?” Petition for a Writ of Certiorari, 2015 WL 4776723 (U.S. Aug. 11, 2015) (No. 15-194); Jacob v. Korean Air Lines Co., 136 S. Ct. 267 (2015).

15

B. The Fifth Circuit Bassam Decision In Bassam v. Am. Airlines, Inc., 287 F. App’x 309 (5th Cir. 2008), plaintiff sought to recover, in part, for emotional distress under Article 17(1) of the Montreal Convention in connection with the loss of items in her luggage. Id. at 311. The District Court granted summary judgment dismissing the claim. While the Court of Appeals deemed the argument regarding the recoverability of emotional distress waived on appeal for failure to brief, the Court nevertheless addressed this claim and held such injuries are not recoverable under Articles 17(1), 17(2) or 19 of the Montreal Convention. Id. at 316-17. With respect to the claim under Article 17(1), the Court held: As directed by the Montreal Convention, in looking to existing judicial precedent, 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. See Ehrlich, 360 F.3d at 369- 400; Booker v. BWIA West Indies Airways Ltd., No. 06-CV-2146, 2007 WL 1351927, at *4 (E.D.N.Y. May 8, 2007); see also E. Airlines, Inc. v. Floyd, 499 U.S. 530, 552-53, 111 S.Ct. 1489, 113 L.Ed.2d 569 (1991) (holding that a carrier could not be held liable under Article 17 of the Warsaw Convention for mental injuries that did not accompany bodily injuries); Carey v. United Airlines, 255 F.3d 1044, 1051 (9th Cir.2001) (holding that emotional and mental distress, even when accompanied by physical manifestations, are not recoverable under Article 17 of the Warsaw Convention). Bassam has not alleged any physical injury. Moreover, even if her claim of “embarrassment and upset” could be construed 16

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). Id. at 317. C. The Sixth Circuit Decision Below The Court below discounted the relevancy of Jacob and Bassam finding that they either did not conduct any analysis of the text of the Montreal Convention, the plaintiff could not establish the “accident” condition, or involved only emotional injuries and, therefore, the Courts did not actually adopt the holding of Ehrlich. A 52a-54a. Regardless of whether the characterization of these cases by the Court below is accurate, it is plain that both Jacob and Bassam first set forth what was the well-settled rule – emotional injuries are not recoverable under Article 17 of the Montreal or Warsaw Convention unless they were caused by physical injuries – and then applied that rule to the particular facts presented. Neither Jacob nor Bassam expressed any reservation regarding this rule. Bassam cited to other cases in accord with Ehrlich, and both Courts recognized that “[a]lthough the Montreal Convention completely replaced the prior Warsaw Convention, courts interpreting the Montreal Convention rely on cases interpreting similar provisions of the Warsaw Convention.” See Bassam, 287 F. App’x at 313, n.5; Jacob, 606 F. App’x at 580, n.2. The Montreal Convention conditions for liability in Article 17(1) were left untouched and are identical to the Warsaw Convention (“accident,” “bodily injury” 17 and on board the aircraft or embarking/ disembarking). Thus, there was no need for the Courts to re-analyze an issue they clearly deemed already decided under the Warsaw Convention, especially in light of the clear and repeated directives of the drafters and the United States that courts should look to existing Warsaw Convention precedent in interpreting similar provisions of the Montreal Convention “in order to avoid unnecessary litigation over issues already decided by the courts under the Warsaw Convention.” S. Exec. Rep. No. 108-8, at 3 (2003). As matters now stand, in the Eleventh and Fifth Circuits, Article 17(1) of the Montreal Convention allows recovery for mental injuries only if caused by a bodily injury. But, in the Sixth Circuit, recovery for mental injuries is allowed “regardless of whether they are caused directly by the bodily injury.” The conflict is clear, the conflict is direct and the conflict is irreconcilable. Certiorari should be granted to resolve this conflict and the question left open by Floyd. Providing guidance to the lower courts at this time as to under what circumstances mental injuries are allowed by Article 17(1) also furthers the Convention goals of speedy claim resolution and the uniformity the drafters sought to achieve by retaining “existing language and substance” of various provisions (including Article 17). See S. Exec. Rep. No. 108-8, at 3 (2003). 18

II THE DECISION BELOW CONFLICTS WITH THE COURT’S DECISIONS IN FLOYD AND ZICHERMAN AND THE PLAIN TEXT OF ARTICLE 17(1) The Montreal Convention unifies and replaces the Warsaw Convention system of liability. Ehrlich, 360 F.3d at 371, n.4. However, the terms of Article 17(1) of the Montreal Convention are materially identical to Warsaw Article 17. As with the Warsaw Convention, Article 17(1) of the Montreal Convention creates carrier liability “in case of death or bodily injury.” While the Montreal drafters specifically considered extending a carrier’s liability to include “mental injuries,” this proposal was rejected and the term “bodily injury” was retained. Ehrlich, 360 F.3d at 394. Thus, recovery for “mental injuries” must be premised upon a finding that it is included within the term “bodily injury.” As set forth in Floyd, the threshold Convention issue is not if mental injuries are recoverable as “damage sustained,” but whether the term “bodily injury” allows recovery for mental injuries when they are not related to or do not flow from the bodily injury. The decision of the Court below conflicts with the language of Article 17(1), as well as with interpretation of the Convention mandated by Floyd and Zicherman.

19

A. The Decision Below Allowing Recovery of Mental Injuries as “Damages Sustained” Conflicts with Floyd and Zicherman While the Court below recognized the continued applicability of the Court’s Warsaw Convention decisions in interpreting the Montreal Convention (A 42a), it then ignored the textual analysis required by Floyd and misapplied Zicherman in finding mental injuries are allowed by Article 17(1) as “damage sustained” without analyzing the meaning of the term “bodily injury.” Floyd, 499 U.S. 530, addressed “whether ‘lésion corporelle’ indeed meant (as it had been translated) ‘bodily injury’ ” and found that it had been properly translated as “bodily injury,”9 a narrow meaning excluding purely mental injuries. Id. at 536-42; Zicherman, 516 U.S. at 221-23. The Court then confirmed this conclusion as consistent with the drafting history, the Convention’s purpose and the post-1929 conduct and interpretation of the signatories. Floyd, 499 U.S. at 543-47. While Floyd did not reach the question of whether passengers can recover for mental injuries that are accompanied by physical injuries, mental injuries that are unrelated to physical injury are no different from the pure mental injury claims proscribed by Floyd. See Ehrlich, 390 F.3d at 386-87; Longo, 1996 WL 866124, at *2. As aptly noted by the courts in Ehrlich and

9 Unlike the Warsaw Convention where the only authentic text was in French, the Montreal Convention is equally authentic in six languages, including French and English. Montreal Convention, Attestation Clause (A107a-108a). The French version of Montreal retained the term “lésion corporelle.” 20

Little Rock: “If we determined that a ‘physical injury, no matter how minor or unrelated,’ could ‘trigger recovery of any and all post-crash mental injuries,’ that conclusion would violate the ‘spirit of Floyd.’ ” Ehrlich, 360 F.3d at 386 (quoting Little Rock, 291 F.3d at 510). “Such a construction would improperly encourage artful pleading and would therefore ‘scarcely advance the predictability that adherence to the treaty has achieved worldwide.’ Tsui Yuan Tseng, 525 U.S. at 171, 119 S.Ct. 662 (rejecting an interpretation of Article 17 that would have encouraged artful pleading).” Ehrlich, 360 F.3d at 387. Even more troublesome is the decision of the Court below to base recovery of mental injuries on the term “damage sustained,” which was interpreted by the Court in Zicherman, 516 U.S. 217. In Zicherman, the Court rejected the argument that the term “damage sustained” itself defines what damages are “legally cognizable.” Id. at 222. The Court found that Article 17 permits compensation only for legally “cognizable harm,” but pursuant to Article 24(2) leaves the specification of what harm is “legally” cognizable to the domestic law applicable under the forum’s choice- of-law rules. Id. at 223-25. Thus, “Articles 17 and 24(2) provide nothing more than a pass-through, authorizing [courts] to apply the law that would govern in absence of the Warsaw Convention.” Id. at 229.10 See Tseng, 525 U.S. at 170 (“Court in Zicherman determined that [the] Warsaw [Convention] drafters intended to resolve whether there is liability, but to leave to domestic law (the local

10 Montreal Articles 17(1) and 29 are substantively the same as corresponding Warsaw Articles 17 and 24. 21 law identified by the forum under its choice-of-law rules or approaches) determination of the compensatory damages available to the suitor.”) (emphasis in original). Whether Doe suffered the type of injury for which Article 17(1) creates liability depends on the meaning of “bodily injury,” not “damage sustained.” In finding that recovery for mental injury is “damage sustained” without addressing the threshold issue of “bodily injury,” the Court below adopted an incorrect interpretation of the Convention that is contrary to the language of Article 17(1) and conflicts with Floyd and Zicherman. Certiorari should be granted to ensure the proper interpretation of the Convention as directed by the Court and required by the plain language of the Convention. B. The Decision Below Creates a New Causation Requirement Not Supported by the Text of Article 17(1) The Court below improperly read into Article 17(1) the requirement that mental injuries (which it defined as “damage sustained”) unconnected to the “bodily injury” are allowed if they “result from” or are “traceable” to the accident. A 24a, 58a. This causative requirement between “damages sustained” and “accident” is neither found in, nor supported by, the language of Article 17(1).11

11 The Court below noted that it “is still not entirely clear as to what connection must exist between the required bodily injury and claimed mental anguish.” A 25a-26a. The Court found ambiguity as to whether the Convention requires “a single 22

To find, as the Court below did, that free standing emotional injuries are recoverable as “damage sustained” if they “result from” or are “traceable” to the “accident” would improperly amend Article 17(1) to read: The carrier is liable for damages sustained [including mental injuries if they result from or are traceable to the accident] 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.

As the Court below recognized, “ ‘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.’ ” A 22a (quoting The Amiable Isabella, 19 U.S. (6 Wheat.) 1 (1821). Yet, this is exactly what was done by the Court below and certiorari should be granted to ensure this error of treaty interpretation is not perpetuated by other courts.

accident [to] cause both the required bodily injury and the claimed mental anguish in order for the mental anguish to be ‘sustained in case of the bodily injury.’ ” A 26a. Nevertheless, the Court held that only “when a single ‘accident’ causes both bodily injury and mental anguish, the mental anguish is sustained ‘in case of’ bodily injury.” Id. 23

III THE QUESTION PRESENTED IS IMPORTANT AS THE COURT BELOW REJECTED THE WELL-SETTLED CONVENTION RULE REQUIRING A CAUSAL CONNECTION BETWEEN THE BODILY AND MENTAL INJURY DESPITE THE EXPRESS INTENT OF THE DRAFTERS TO PRESERVE WARSAW PRECEDENT The proper interpretation of Article 17(1) and the circumstances when mental injury is recoverable is of particular importance. While the issue presented here was left opened by the Court in Floyd, this had not caused any significant difficulty for more than 25 years as the lower courts have adopted an interpretation of Article 17, which allows the recovery of mental injuries only if they flow from the bodily injury. Such an interpretation is in accord with Floyd, allows the recovery for mental injury consistent with the Convention’s use of the term “bodily injury,” and preserves Warsaw precedent while allowing for “an equitable balance of interests” among passengers and air carriers as intended by the Montreal drafters. Indeed, it is in accord with the decisions of other Convention signatories. See infra, at 27-28. Thus, until now, it had not been necessary for the Court to address this issue. The decision of the Court below has upset this balance by following the path set by Roselawn, which has been rejected by the courts. The issue of the recoverability of mental injuries was considered by the Montreal drafters. After considerable debate, the drafters ultimately decided 24 to not make reference to mental injuries and to retain “bodily injury.” See Ehrlich, 369 F.3d at 391-400 (summarizing delegate’s comments); Brief for the United States as Amicus Curiae, 2003 WL 23497831, at *5-12 (2d Cir. Aug. 18, 2003) (No. 02-9462) (summarizing delegate’s comments). In fact, the drafters opted to retain many of the original provisions and terms of the Warsaw Convention in order to preserve established law interpreting the Warsaw Convention specifically to avoid unnecessary litigation. The U.S. Senate Report submitted with respect to the ratification of the Montreal Convention states: Continuity of Applicable Warsaw Precedents * * * In the nearly seventy years that the Warsaw Convention has been in effect, a large body of judicial precedent has been established in the United States. The negotiators of the Montreal Convention intended to preserve these precedents. According to the Executive Branch testimony, ‘‘[w]hile the Montreal Convention provides essential improvements upon the Warsaw Convention and its related protocols, efforts were made in the negotiations and drafting to retain existing language and substance of other provisions to preserve judicial precedent relating to other aspects of the Warsaw Convention, in order to avoid unnecessary litigation over issues already decided by the courts under the Warsaw Convention and its related protocols.’’ (Response to questions for the record submitted by Chairman Lugar, page 68). 25

S. Exec. Rep. No. 108-8, at 3 (2003). See also Letter of Submittal, S. Treaty Doc. No. 106-45, 1999 WL 33292734, at *7 (2000) (“At the International Conference on Air Law at which the Convention was adopted, delegates considered making express reference to recovery for mental injury, but instead resolved to leave untouched legal precedents developed under the language of the Warsaw Convention, acknowledging that such precedents currently allow the recovery of mental injury in certain situations and that the law in this area will continue to develop in the future.”). At the time of the Montreal Conference (May 1999), Floyd had been decided and most district courts that had considered the issue, as well as the New York Court of Appeals, had allowed recovery for mental injuries only to the extent that they were caused by physical injuries. Ehrlich, 360 F.3d at 399 (citing cases). The Court below dismissed the relevance of Warsaw Convention precedent, finding the goals of the two Conventions differed. A 36a-37a. A primary goal of both Conventions was uniformity and predictability with respect to liability and claims, but unlike Warsaw, the Montreal Convention eliminated the monetary limits of liability for passenger death and injury. Montreal Convention, Preamble (A 76a); Ehrlich, 360 F.3d at 371 n. 4.12 Nevertheless, the

12 The Montreal Convention recognizes the importance of ensuring protection of the interests of consumers in international carriage by air and the need for equitable compensation. Id. at 371, n.4. To achieve this, the Convention established virtual strict liability for passenger death and injury claims up to 100,000 SDRs, presumptive liability without limit above that 26

Montreal Convention also sought to achieve “an equitable balance of interests” among passengers and air carriers. Montreal Convention, Preamble (A75a- 76a). The decision below is inapposite to the Convention’s goal of uniformity, predictability and speedy claim resolution as it will only lead to “unnecessary litigation over issues already decided by the courts under the Warsaw Convention” years ago. The rule created by the Court below expands the liability of carriers beyond what was accepted at Montreal and will give rise to anomalous and illogical consequences. Ehrlich explained: “similarly situated passengers [would be] treated differently from one another on the basis of an arbitrary and insignificant difference in their experience.” Id. 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 385-86 (quoting Alvarez, 1999 WL 691922, at *5); Longo, 1996 WL 866124, at *2. The decision of the Court below now necessitates a definitive answer to the open Floyd question. Certiorari should be granted to restore the proper

amount and an additional jurisdiction in which suits could be filed. Montreal Convention, Articles. 17(1), 21 and 33(2). These changes were intended to expedite passenger settlement. 27 balance that existed before the decision of the Court below and to ensure that the lower courts follow the clear direction of the drafters when interpreting the Montreal Convention. IV THE DECISION BELOW CONFLICTS WITH THE DECISIONS OF OTHER STATE PARTIES TO THE MONTREAL CONVENTION When interpreting treaty provisions, the Court affords “considerable weight” to the opinions of sister signatories. Saks, 470 U.S. at 404. The court decisions of the other signatories to the Warsaw and Montreal Conventions are in accord with and often cite approvingly to U.S. court decisions, including Ehrlich, that require the mental injuries to be caused by or flow from a bodily injury:

 In American Airlines v. Georgeopoulos (No 2), [1998] N.S.W.C.A. 273 (Australia), Court of Appeal rejected an argument principally based on Roselawn that a carrier would be liable under Article 17 of the Warsaw Convention for mental injuries that were not a result of death or bodily injury.

 In King v. Bristow Helicopters Ltd., [2002] UKHL 7, [2002] 2 A.C. 628 (U.K.), the opinions expressed by certain Law Lords in the House of Lords noted that recoverable damages under Article 17 of the Warsaw Convention must be caused by a bodily injury.

 In Plourde v. Service Service aérien F.B.O. inc. (Skyservice), 2007 QCCA 739 (Canada), the Quebec Court of Appeal cited Ehrlich 28

favorably as “illuminating the issue of compensation for psychological harm” under the Warsaw Convention and held that “the Montreal Convention did not modify the air carrier liability regime in the event of psychological harm” and that “the question of compensation for psychological harm was specifically addressed at the [Montreal] Conference and clearly rejected.”

 In Wettlaufer v. Air Transat A.T. Inc., 2013 BCSC 1245 (Canada), the British Columbia Supreme Court (a court of first instance) applied Ehrlich to find that a plaintiff could not recover for a fear of flying under Article 17(1) of the Montreal Convention because there was “not a sufficient causal link” between the fear and the alleged bodily injury.

 In Pel-Air Aviation Pty Ltd v. Casey, [2017] NSWCA 32 (Australia), the Court of Appeal denied recovery for mental injury under Article 17(1) of the Montreal Convention, despite the presence of bodily injuries, finding that “[i]mportance must be attached to the adjective ‘bodily’ as a limiting word. It clearly draws a distinction between bodily and mental injuries: mental injuries are covered only if they are a manifestation of physical injuries, or if they result from physical injuries.” Certiorari should be granted as the decision of the Court below is inconsistent with those of the other signatories and, therefore, threatens the Montreal Convention’s goal of achieving uniformity of the rules 29 governing air carrier liability in international carriage. CONCLUSION Based upon the foregoing reasons, the Petition for a Writ of Certiorari should be granted. Dated: January 4, 2018

Respectfully submitted,

Andrew J. Harakas Counsel of Record CLYDE & CO US LLP Attorneys for Petitioner The Chrysler Building 405 Lexington Avenue, 16th Floor New York, New York 10174 (212) 710-3900

Of Counsel: Daniel E. Correll Philip R. Weissman APPENDIX 1a

Order Denying Petition for Rehearing en banc from the United States Court of Appeals, Sixth Circuit (October 6, 2017) FILED Oct 06, 2017 DEBORAH S. HUNT, Clerk

No. 16-1042 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ORDER ——————————————————— JANE DOE; JOHN DOE, HUSBAND AND WIFE, Plaintiffs-Appellants, v. ETIHAD AIRWAYS, P.J.S.C., Defendant-Appellee. ——————————————————— BEFORE: BOGGS, SUHRHEINRICH, and McKEAGUE, Circuit Judges. The court received a petition for rehearing en banc. The original panel has reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of the case. The petition then was circulated to the full court. No judge has requested a vote on the suggestion for rehearing en banc. Therefore, the petition is denied. 2a

ENTERED BY ORDER OF THE COURT /s/ Deborah S. Hunt Deborah S. Hunt, Clerk 3a

Judgment from the United States Court of Appeals, Sixth Circuit (August 30, 2017) UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 16-1042 ——————————————————— JANE DOE; JOHN DOE, husband and wife, Plaintiffs - Appellants, v. ETIHAD AIRWAYS, P.J.S.C., Defendant - Appellee. ——————————————————— Before: BOGGS, SUHRHEINRICH, and McKEAGUE, Circuit Judges.

JUDGMENT On Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor.

THIS CAUSE was heard on the record from the district court and was argued by counsel. IN CONSIDERATION THEREOF, it is ORDERED that the district court’s partial-summary-judgment order is REVERSED, and the case is REMANDED for further proceedings consistent with the opinion of this court.

ENTERED BY ORDER OF THE COURT /s/ Deborah S. Hunt Deborah S. Hunt, Clerk

5a

Opinion Reversing the District Court’s Partial- Summary Judgment Order and Remanding this Matter for Further Proceedings from the United States Court of Appeals, Sixth Circuit (August 30, 2017)

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 16-1042 ———————————————————

JANE DOE; JOHN DOE, husband and wife,

Plaintiffs-Appellants, 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. ———————————————————

6a

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, 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. 7a

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.

8a

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 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. 9a

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. 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 — Etihad waived sovereign immunity from suit in United States courts and could thus be sued “in any judicial district in which [Etihad] is

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 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.” 10a 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 a stray needle and not, for example, a sterilized toothpick, that pricked Doe’s finger. The logic behind

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. 11a 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.

12a

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 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

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. , 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. 13a

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 , 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 14a

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). 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

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 15a 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 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:

diseases to health-care workers.” Needle, Oxford English Dictionary, http://www.oed.com/view/Entry/125771 (last visited Aug. 29, 2017). 16a

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, 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/97801954181 63.001.0001/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, 17a 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 that the passenger’s

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 18a 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.”

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 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.” 19a

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 upon landing at New York’s JFK International . 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 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.

7 American Eagle is a brand name under which various regional air carriers operate flights on behalf of American Airlines. 20a

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 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 21a

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

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.” 22a 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.– Treaty for safe passage of ships

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. 23a did not protect a Spanish claimant from United States condemnation of a schooner during the War of 1812 when the requisite 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 Convention’s purpose of “limiting the liability of air carriers in order to foster the growth of the fledgling 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 24a 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. 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:

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 25a

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 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

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. 26a 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 27a 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, 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 28a

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, at *16 (2000).11 These

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. 29a 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

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. 30a 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. 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. 31a

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. 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 32a 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 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 . 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 33a

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 six months’ notice 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.

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. 34a

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 “ 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 something more like a negligence standard that imposes unlimited liability above the 100,000-SDR cap if the airline cannot prove that it

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. 35a 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 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 36a 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 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 37a 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 discussion of the history and purpose of the Montreal Convention; and (3) a brief discussion of relevant district-court cases.

38a

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). 39a

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. 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). 40a

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

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 41a asthmatic passenger died after flight attendant repeatedly but wrongly refused to reseat him away from the 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 CLR 189, 190 (High Court of Australia) (applying

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. 42a

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. 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 43a

“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

15 See n.6, supra. 16 See, e.g., Cas, Grand Dictionnaire Encyclopédique Larousse (1982). 44a

“in case of” does not contain a requirement that “damages sustained” be “caused by” bodily injury. 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 45a 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. 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 46a 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 47a together with or flowing from the crash-landing would be recoverable? 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 48a

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 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 49a 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. 50a

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 51a 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. 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, 52a 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 ; (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 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 53a 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 54a 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). 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

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. 55a

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 Regulations, specifically in cases of delays and lost . See, e.g., Case C-94/14, Flight Refund Ltd v. Deutsche Lufthansa AG, 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 has reaffirmed, for example, that “injury to feelings . . . related to [a passenger’s] treatment during the process of embarkation and during the flight, which 56a 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 57a 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). 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. 58a

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 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 59a 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:

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 mental anguish. But that framework is neither found in the text of the Montreal Convention nor supported by the history and purpose 60a 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, 61a

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. 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).

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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: 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 63a

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 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. 64a

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. 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. 65a

Opinion and Order Granting Defendant’s Motion for Partial Summary Judgment from the United States District Court for the Eastern District of Michigan (October 13, 2015) UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION Case No. 13-14358 Hon. John Corbett O’Meara ——————————————————— JANE DOE and JOHN DOE, husband and wife, Plaintiffs, v. ETIHAD AIRWAYS, P.J.S.C., Defendant. ——————————————————— OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT Before the court is Defendant Etihad Airways, P.J.S.C.’s motion for summary judgment, which has been fully briefed. For the reasons explained below, Defendant’s motion is granted.

66a

BACKGROUND FACTS On August 13, 2013, Plaintiff Jane Doe flew on an Etihad Airways flight from Abu Dhabi to Chicago. During the flight, she reached into the seat back pocket and felt a sharp pain. She withdrew her hand and saw blood on her finger. Checking the seat back pocket, Plaintiff found a hypodermic syringe. Etihad personnel provided a bandage for Plaintiff and disposed of the syringe. The next day, Plaintiff saw her physician who, after consulting with an infectious disease specialist, ordered tests for HIV and hepatitis and prescribed anti-viral drugs to be taken for thirty days. Plaintiff was tested three times for HIV in the year after her needle injury; she was not found to have developed HIV. Plaintiff filed this action on October 13, 2013, for her injuries sustained as a result of the needle stick. Plaintiff contends that she suffered emotional distress and mental anguish as a result of her injury, particularly a fear of developing HIV or hepatitis. As result of her uncertain status, she abstained from sexual relations with her husband, John Doe, who alleges a loss of consortium claim. LAW AND ANALYSIS I. Standard of Review Defendant seeks partial summary judgment pursuant to Federal Rule of Civil Procedure 56. Summary judgment is appropriate if “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). See also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 67a

587 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). II. Montreal Convention Plaintiff’s claims arise under Article 17 of the Montreal Convention, an international treaty that governs the liability of international air carriers. See Convention for the Unification for Certain Rules for International Carriage by Air, May 28, 1999, ICAO Doc. No. 9740 (entered into force on Nov. 4, 2003) reprinted in S. Treaty Doc. No. 106–45, 1999 WL 33292734 (2000). The Montreal Convention superseded the Warsaw Convention, but retained many of the Warsaw Convention’s substantive provisions. See generally Ehrlich v. American Airlines, Inc., 360 F.3d 366, 371 n.4 (2d Cir. 2004). Courts routinely look to legal precedent interpreting the Warsaw Convention for substantively equivalent provisions of the Montreal Convention. See Baah v. Virgin Atlantic Airways Ltd., 473 F. Supp.2d 591, 595- 96 (S.D.N.Y. 2007). Article 17 of the Montreal Convention 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 took place on board the aircraft or in the course of any of the operations of embarking or disembarking. Montreal Convention, art. 17.1. Defendant argues that Plaintiff may not recover emotional distress damages under this provision, which provides liability “for damage sustained in case of death or bodily injury.” Id. (emphasis added). 68a

It is well settled that purely emotional distress damages – which do not arise from a bodily injury – are not recoverable under the Warsaw or Montreal Conventions. See Eastern Airlines v. Floyd, 499 U.S. 530, 552-53 (1991). Rather, “recovery for mental injuries is permitted only to the extent the distress is caused by the physical injuries sustained.” In re Air Crash at Little Rock Arkansas, on June 1, 1999, 291 F.3d 503, (8th Cir. 2002), cert. denied, Lloyd v. American Airlines, Inc., 537 U.S. 974 (2002). See also Ehrlich v. American Airlines, Inc., 360 F.3d 366, 400 (2d Cir. 2004) (under Warsaw Convention, “a carrier may be held liable under Article 17 for mental injuries only if they are caused by bodily injuries.”); Bassam v. American Airlines, Inc., 287 F. App’x 309, 317 (5th Cir. 2008) (“As directed by the Montreal Convention, in looking to existing judicial precedent, 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.”). Defendant argues, and the court agrees, that 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. Plaintiff’s emotional distress damages are not available under the Montreal Convention, which provides the exclusive remedy. See El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 161 (1999) (recovery for injury suffered on board aircraft “if not allowed under the Convention, is not available at all.”). 69a

ORDER Accordingly, IT IS HEREBY ORDERED that Defendant’s motion for partial summary judgment is GRANTED. s/ John Corbett O’Meara United States District Judge Date: October 13, 2015

I hereby certify that a copy of the foregoing document was served upon counsel of record on this date, October 13, 2015, using the ECF system.

s/ William Barkholz Case Manager

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Stipulation and Order of Dismissal With Prejudice and Without Costs from the United States District Court for the Eastern District of Michigan (December 16, 2015) UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION Case No: 13-cv-14358-JCO-MKM HON. JOHN CORBETT O’MEARA ——————————————————— JANE DOE and JOHN DOE, husband and wife, Plaintiffs, vs.

ETIHAD AIRWAYS, P.J.S.C., Defendant. ——————————————————— STIPULATION AND ORDER OF DISMISSAL, WITH PREJUDICE AND WITHOUT COSTS IT IS HEREBY stipulated and agreed by the parties: 1. Plaintiff JANE DOE filed her cause of action for damages under Article 17 of the Montreal Convention against Defendant, ETIHAD AIRWAYS, P.J.S.C, (“ETIHAD”) following an alleged needlestick injury aboard Defendant’s aircraft while in international carriage. Plaintiff JOHN DOES’s cause of action was 72a derivative to JANE DOE’s claim, alleging loss of consortium. 2. The Montreal Convention provides the only mechanism of recovery for the Plaintiffs against Etihad. 3. The parties completed discovery on issues of 1) liability, including beyond the first-tier of strict liability, and 2) Plaintiffs’ damages. 4. The gravamen of JANE DOE’s claimed damages were the emotional or mental distress damages, which include, without limitation, the fear of developing HIV/Hepatitis, outrage, embarrassment, mortification, guilt, loss or denial of certain pleasures of life and shock. 5. ETIHAD filed a Motion for Partial Summary Judgment [DE 19] requesting the Court dismiss JANE DOE’s mental or emotional distress damages and JOHN DOE’s derivative claim, which the Court did in its Opinion and Order Granting Defendant’s Motion for Partial Summary Judgment [DE 27]. 6. Following the Opinion and Order Granting Defendant’s Motion for Partial Summary Judgment [DE 27] on October 13, 2015, the only remaining claim was for JANE DOE’s damages for the physical pain and suffering caused by the needlestick, and the economic damages for medical services, both of which are de minimis in context of the now-dismissed claims. JOHN DOE’s claims were dismissed in the entirety. 7. The Opinion and Order Granting Defendant’s Motion for Partial Summary Judgment therefore reflected an involuntary adverse judgment against JANE DOE on everything but an insignificant portion 73a of her damages; and a complete dismissal of JOHN DOE’s claim. 8. As trial of the remaining issues would not materially advance the ultimate termination of this litigation, the parties reached a settlement on the physical pain and suffering damages and economic damages, only, expressly allowing for Plaintiffs’ immediate appeal of the Court’s Order. 9. Through this Stipulation and Order, Plaintiffs notify the Court and the Defendant that they seek a final order of dismissal, with prejudice and without costs or attorney fees, for the sole purpose of obtaining an expeditious appellate review of the Opinion and Order Granting Defendant’s Motion for Partial Summary Judgment [DE 27].

/s/ Mark Kelley Schwartz MARK KELLEY SCHWARTZ (P48058) Attorney for Plaintiffs

/s/ Scott W. Torpey SCOTT W. TORPEY (P36719) Attorney for Defendant Etihad

/s/ Andrew J. Harakas ANDREW J. HARAKAS (P39829) Attorney for Defendant Etihad

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ORDER OF VOLUNTARY DISMISSAL WITH PREJUDICE AND WITHOUT COSTS The parties having stipulated as provided above, and in reliance on same, pursuant to Fed. R. Civ. P. Rule 41(a)(2), it is hereby ORDERED that the within cause of action shall be dismissed, in full, with prejudice, and without costs or attorney fees. This is a final Order resolving all remaining claims and closes the case. Date: December 16, 2015

/s/ John Corbett O’Meara John Corbett O’Meara United States District Judge 75a

Convention for the Unification of Certain Rules for International Carriage by Air Done at Montreal on the 28th day of May, 1999 (Montreal Convention)

CONVENTION FOR THE UNIFICATION OF CERTAIN RULES FOR INTERNATIONAL CARRIAGE BY AIR DONE AT MONTREAL ON 28 MAY 1999 THE STATES PARTIES TO THIS CONVENTION RECOGNIZING the significant contribution of the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed in Warsaw on 12 October 1929, hereinafter referred to as the “Warsaw Convention”, and other related instruments to the harmonization of private international air law; RECOGNIZING the need to modernize and consolidate the Warsaw Convention and related instruments; RECOGNIZING the importance of ensuring protection of the interests of consumers in international carriage by air and the need for equitable compensation based on the principle of restitution; REAFFIRMING the desirability of an orderly development of international air transport operations and the smooth flow of passengers, baggage and cargo in accordance with the principles and objectives of the Convention on International Civil Aviation, done at Chicago on 7 December 1944; 76a

CONVINCED that collective State action for further harmonization and codification of certain rules governing international carriage by air through a new Convention is the most adequate means of achieving an equitable balance of interests; HAVE AGREED AS FOLLOWS:

Chapter I General Provisions Article 1 -- Scope of Application 1. This Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking. 2. For the purposes of this Convention, the expression international carriage means any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transhipment, are situated either within the territories of two States Parties, or within the territory of a single State Party if there is an agreed stopping place within the territory of another State, even if that State is not a State Party. Carriage between two points within the territory of a single State Party without an agreed stopping place within the territory of another State is not international carriage for the purposes of this Convention. 3. Carriage to be performed by several successive carriers is deemed, for the purposes of this Convention, to be one undivided carriage if it has been regarded by the parties as a single operation, whether 77a it had been agreed upon under the form of a single contract or of a series of contracts, and it does not lose its international character merely because one contract or a series of contracts is to be performed entirely within the territory of the same State. 4. This Convention applies also to carriage as set out in Chapter V, subject to the terms contained therein. Article 2 -- Carriage Performed by State and Carriage of Postal Items 1. This Convention applies to carriage performed by the State or by legally constituted public bodies provided it falls within the conditions laid down in Article 1. 2. In the carriage of postal items, the carrier shall be liable only to the relevant postal administration in accordance with the rules applicable to the relationship between the carriers and the postal administrations. 3. Except as provided in paragraph 2 of this Article, the provisions of this Convention shall not apply to the carriage of postal items. Chapter II Documentation and Duties of the Parties Relating to the Carriage of Passengers, Baggage and Cargo Article 3 -- Passengers and Baggage 1. In respect of carriage of passengers, an individual or collective document of carriage shall be delivered containing: 78a

(a) an indication of the places of departure and destination; (b) if the places of departure and destination are within the territory of a single State Party, one or more agreed stopping places being within the territory of another State, an indication of at least one such stopping place. 2. Any other means which preserves the information indicated in paragraph 1 may be substituted for the delivery of the document referred to in that paragraph. If any such other means is used, the carrier shall offer to deliver to the passenger a written statement of the information so preserved. 3. The carrier shall deliver to the passenger a baggage identification tag for each piece of . 4. The passenger shall be given written notice to the effect that where this Convention is applicable it governs and may limit the liability of carriers in respect of death or injury and for destruction or loss of, or damage to, baggage, and for delay. 5. Non-compliance with the provisions of the foregoing paragraphs shall not affect the existence or the validity of the contract of carriage, which shall, nonetheless, be subject to the rules of this Convention including those relating to limitation of liability. Article 4 -- Cargo 1. In respect of the carriage of cargo, an air waybill shall be delivered. 2. Any other means which preserves a record of the carriage to be performed may be substituted for the delivery of an air waybill. If such other means are 79a used, the carrier shall, if so requested by the consignor, deliver to the consignor a cargo receipt permitting identification of the consignment and access to the information contained in the record preserved by such other means. Article 5 -- Contents of Air Waybill or Cargo Receipt The air waybill or the cargo receipt shall include: (a) an indication of the places of departure and destination; (b) if the places of departure and destination are within the territory of a single State Party, one or more agreed stopping places being within the territory of another State, an indication of at least one such stopping place; and (c) an indication of the weight of the consignment. Article 6 -- Document Relating to the Nature of the Cargo The consignor may be required, if necessary to meet the formalities of , police and similar public authorities, to deliver a document indicating the nature of the cargo. This provision creates for the carrier no duty, obligation or liability resulting therefrom. Article 7 -- Description of Air Waybill 1. The air waybill shall be made out by the consignor in three original parts. 2. The first part shall be marked “for the carrier”; it shall be signed by the consignor. The second part shall be marked “for the consignee”; it shall be signed by the consignor and by the carrier. The third part 80a shall be signed by the carrier who shall hand it to the consignor after the cargo has been accepted. 3. The signature of the carrier and that of the consignor may be printed or stamped. 4. If, at the request of the consignor, the carrier makes out the air waybill, the carrier shall be deemed, subject to proof to the contrary, to have done so on behalf of the consignor. Article 8 -- Documentation for Multiple Packages When there is more than one package: (a) the carrier of cargo has the right to require the consignor to make out separate air waybills; (b) the consignor has the right to require the carrier to deliver separate cargo receipts when the other means referred to in paragraph 2 of Article 4 are used. Article 9 -- Non-compliance with Documentary Requirements Non-compliance with the provisions of Articles 4 to 8 shall not affect the existence or the validity of the contract of carriage, which shall, nonetheless, be subject to the rules of this Convention including those relating to limitation of liability. Article 10 -- Responsibility for Particulars of Documentation 1. The consignor is responsible for the correctness of the particulars and statements relating to the cargo inserted by it or on its behalf in the air waybill or furnished by it or on its behalf to the carrier for insertion in the cargo receipt or for insertion in the 81a record preserved by the other means referred to in paragraph 2 of Article 4. The foregoing shall also apply where the person acting on behalf of the consignor is also the agent of the carrier. 2. The consignor shall indemnify the carrier against all damage suffered by it, or by any other person to whom the carrier is liable, by reason of the irregularity, incorrectness or incompleteness of the particulars and statements furnished by the consignor or on its behalf. 3. Subject to the provisions of paragraphs 1 and 2 of this Article, the carrier shall indemnify the consignor against all damage suffered by it, or by any other person to whom the consignor is liable, by reason of the irregularity, incorrectness or incompleteness of the particulars and statements inserted by the carrier or on its behalf in the cargo receipt or in the record preserved by the other means referred to in paragraph 2 of Article 4. Article 11 -- Evidentiary Value of Documentation 1. The air waybill or the cargo receipt is prima facie evidence of the conclusion of the contract, of the acceptance of the cargo and of the conditions of carriage mentioned therein. 2. Any statements in the air waybill or the cargo receipt relating to the weight, dimensions and packing of the cargo, as well as those relating to the number of packages, are prima facie evidence of the facts stated; those relating to the quantity, volume and condition of the cargo do not constitute evidence against the carrier except so far as they both have been, and are stated in the air waybill or the cargo receipt to have 82a been, checked by it in the presence of the consignor, or relate to the apparent condition of the cargo. Article 12 -- Right of Disposition of Cargo 1. Subject to its liability to carry out all its obligations under the contract of carriage, the consignor has the right to dispose of the cargo by withdrawing it at the airport of departure or destination, or by stopping it in the course of the journey on any landing, or by calling for it to be delivered at the place of destination or in the course of the journey to a person other than the consignee originally designated, or by requiring it to be returned to the airport of departure. The consignor must not exercise this right of disposition in such a way as to prejudice the carrier or other consignors and must reimburse any expenses occasioned by the exercise of this right. 2. If it is impossible to carry out the instructions of the consignor, the carrier must so inform the consignor forthwith. 3. If the carrier carries out the instructions of the consignor for the disposition of the cargo without requiring the production of the part of the air waybill or the cargo receipt delivered to the latter, the carrier will be liable, without prejudice to its right of recovery from the consignor, for any damage which may be caused thereby to any person who is lawfully in possession of that part of the air waybill or the cargo receipt. 4. The right conferred on the consignor ceases at the moment when that of the consignee begins in accordance with Article 13. Nevertheless, if the consignee declines to accept the cargo, or cannot be 83a communicated with, the consignor resumes its right of disposition. Article 13 -- Delivery of the Cargo 1. Except when the consignor has exercised its right under Article 12, the consignee is entitled, on arrival of the cargo at the place of destination, to require the carrier to deliver the cargo to it, on payment of the charges due and on complying with the conditions of carriage. 2. Unless it is otherwise agreed, it is the duty of the carrier to give notice to the consignee as soon as the cargo arrives. 3. If the carrier admits the loss of the cargo, or if the cargo has not arrived at the expiration of seven days after the date on which it ought to have arrived, the consignee is entitled to enforce against the carrier the rights which flow from the contract of carriage. Article 14 -- Enforcement of the Rights of Consignor and Consignee The consignor and the consignee can respectively enforce all the rights given to them by Articles 12 and 13, each in its own name, whether it is acting in its own interest or in the interest of another, provided that it carries out the obligations imposed by the contract of carriage. Article 15 -- Relations of Consignor and Consignee or Mutual Relations of Third Parties 1. Articles 12, 13 and 14 do not affect either the relations of the consignor and the consignee with each other or the mutual relations of third parties whose rights are derived either from the consignor or from the consignee. 84a

2. The provisions of Articles 12, 13 and 14 can only be varied by express provision in the air waybill or the cargo receipt. Article 16 -- Formalities of Customs, Police or Other Public Authorities 1. The consignor must furnish such information and such documents as are necessary to meet the formalities of customs, police and any other public authorities before the cargo can be delivered to the consignee. The consignor is liable to the carrier for any damage occasioned by the absence, insufficiency or irregularity of any such information or documents, unless the damage is due to the fault of the carrier, its servants or agents. 2. The carrier is under no obligation to enquire into the correctness or sufficiency of such information or documents. Chapter III Liability of the Carrier and Extent of Compensation for Damage Article 17 -- Death and Injury of Passengers -- Damage to Baggage 1. 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. 2. The carrier is liable for damage sustained in case of destruction or loss of, or of damage to, checked baggage upon condition only that the event which caused the destruction, loss or damage took place on 85a board the aircraft or during any period within which the checked baggage was in the charge of the carrier. However, the carrier is not liable if and to the extent that the damage resulted from the inherent defect, quality or vice of the baggage. In the case of unchecked baggage, including personal items, the carrier is liable if the damage resulted from its fault or that of its servants or agents. 3. If the carrier admits the loss of the checked baggage, or if the checked baggage has not arrived at the expiration of twenty-one days after the date on which it ought to have arrived, the passenger is entitled to enforce against the carrier the rights which flow from the contract of carriage. 4. Unless otherwise specified, in this Convention the term “baggage” means both checked baggage and unchecked baggage. Article 18 -- Damage to Cargo 1. The carrier is liable for damage sustained in the event of the destruction or loss of, or damage to, cargo upon condition only that the event which caused the damage so sustained took place during the carriage by air. 2. However, the carrier is not liable if and to the extent it proves that the destruction, or loss of, or damage to, the cargo resulted from one or more of the following: (a) inherent defect, quality or vice of that cargo; (b) defective packing of that cargo performed by a person other than the carrier or its servants or agents; (c) an act of war or an armed conflict; 86a

(d) an act of public authority carried out in connection with the entry, exit or transit of the cargo. 3. The carriage by air within the meaning of paragraph 1 of this Article comprises the period during which the cargo is in the charge of the carrier. 4. The period of the carriage by air does not extend to any carriage by land, by sea or by inland waterway performed outside an airport. If, however, such carriage takes place in the performance of a contract for carriage by air, for the purpose of loading, delivery or transhipment, any damage is presumed, subject to proof to the contrary, to have been the result of an event which took place during the carriage by air. If a carrier, without the consent of the consignor, substitutes carriage by another mode of transport for the whole or part of a carriage intended by the agreement between the parties to be carriage by air, such carriage by another mode of transport is deemed to be within the period of carriage by air. Article 19 -- Delay The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures. Article 20 -- Exoneration If the carrier proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation, or the person from whom he or she derives his or her 87a rights, the carrier shall be wholly or partly exonerated from its liability to the claimant to the extent that such negligence or wrongful act or omission caused or contributed to the damage. When by reason of death or injury of a passenger compensation is claimed by a person other than the passenger, the carrier shall likewise be wholly or partly exonerated from its liability to the extent that it proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of that passenger. This Article applies to all the liability provisions in this Convention, including paragraph 1 of Article 21. Article 21 -- Compensation in Case of Death or Injury of Passengers 1. For damages arising under paragraph 1 of Article 17 not exceeding 100 000 Special Drawing Rights for each passenger, the carrier shall not be able to exclude or limit its liability. 2. The carrier shall not be liable for damages arising under paragraph 1 of Article 17 to the extent that they exceed for each passenger 100 000 Special Drawing Rights if the carrier proves that: (a) such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or (b) such damage was solely due to the negligence or other wrongful act or omission of a third party. Article 22 -- Limits of Liability in Relation to Delay, Baggage and Cargo 1. In the case of damage caused by delay as specified in Article 19 in the carriage of persons, the liability of the carrier for each passenger is limited to 4 150 Special Drawing Rights. 88a

2. In the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage or delay is limited to 1 000 Special Drawing Rights for each passenger unless the passenger has made, at the time when the checked baggage was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the passenger’s actual interest in delivery at destination. 3. In the carriage of cargo, the liability of the carrier in the case of destruction, loss, damage or delay is limited to a sum of 17 Special Drawing Rights per kilogramme, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the consignor’s actual interest in delivery at destination. 4. In the case of destruction, loss, damage or delay of part of the cargo, or of any object contained therein, the weight to be taken into consideration in determining the amount to which the carrier’s liability is limited shall be only the total weight of the package or packages concerned. Nevertheless, when the destruction, loss, damage or delay of a part of the cargo, or of an object contained therein, affects the value of other packages covered by the same air waybill, or the same receipt or, if they were not issued, by the same record preserved by the other means referred to in paragraph 2 of Article 4, the total weight 89a of such package or packages shall also be taken into consideration in determining the limit of liability. 5. The foregoing provisions of paragraphs 1 and 2 of this Article shall not apply if it is proved that the damage resulted from an act or omission of the carrier, its servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that such servant or agent was acting within the scope of its employment. 6. The limits prescribed in Article 21 and in this Article shall not prevent the court from awarding, in accordance with its own law, in addition, the whole or part of the court costs and of the other expenses of the litigation incurred by the plaintiff, including interest. The foregoing provision shall not apply if the amount of the damages awarded, excluding court costs and other expenses of the litigation, does not exceed the sum which the carrier has offered in writing to the plaintiff within a period of six months from the date of the occurrence causing the damage, or before the commencement of the action, if that is later. Article 23 -- Conversion of Monetary Units 1. The sums mentioned in terms of Special Drawing Right in this Convention shall be deemed to refer to the Special Drawing Right as defined by the International Monetary Fund. Conversion of the sums into national currencies shall, in case of judicial proceedings, be made according to the value of such currencies in terms of the Special Drawing Right at the date of the judgement. The value of a national currency, in terms of the Special Drawing Right, of a State Party which is a Member of the International 90a

Monetary Fund, shall be calculated in accordance with the method of valuation applied by the International Monetary Fund, in effect at the date of the judgement, for its operations and transactions. The value of a national currency, in terms of the Special Drawing Right, of a State Party which is not a Member of the International Monetary Fund, shall be calculated in a manner determined by that State. 2. Nevertheless, those States which are not Members of the International Monetary Fund and whose law does not permit the application of the provisions of paragraph 1 of this Article may, at the time of ratification or accession or at any time thereafter, declare that the limit of liability of the carrier prescribed in Article 21 is fixed at a sum of 1 500 000 monetary units per passenger in judicial proceedings in their territories; 62 500 monetary units per passenger with respect to paragraph 1 of Article 22; 15 000 monetary units per passenger with respect to paragraph 2 of Article 22; and 250 monetary units per kilogramme with respect to paragraph 3 of Article 22. This monetary unit corresponds to sixty-five and a half milligrammes of gold of millesimal fineness nine hundred. These sums may be converted into the national currency concerned in round figures. The conversion of these sums into national currency shall be made according to the law of the State concerned. 3. The calculation mentioned in the last sentence of paragraph 1 of this Article and the conversion method mentioned in paragraph 2 of this Article shall be made in such manner as to express in the national currency of the State Party as far as possible the same real value for the amounts in Articles 21 and 22 as would result from the application of the first three sentences of paragraph 1 of this Article. States Parties shall 91a communicate to the depositary the manner of calculation pursuant to paragraph 1 of this Article, or the result of the conversion in paragraph 2 of this Article as the case may be, when depositing an instrument of ratification, acceptance, approval of or accession to this Convention and whenever there is a change in either. Article 24 -- Review of Limits 1. Without prejudice to the provisions of Article 25 of this Convention and subject to paragraph 2 below, the limits of liability prescribed in Articles 21, 22 and 23 shall be reviewed by the Depositary at five-year intervals, the first such review to take place at the end of the fifth year following the date of entry into force of this Convention, or if the Convention does not enter into force within five years of the date it is first open for signature, within the first year of its entry into force, by reference to an inflation factor which corresponds to the accumulated rate of inflation since the previous revision or in the first instance since the date of entry into force of the Convention. The measure of the rate of inflation to be used in determining the inflation factor shall be the weighted average of the annual rates of increase or decrease in the Consumer Price Indices of the States whose currencies comprise the Special Drawing Right mentioned in paragraph 1 of Article 23. 2. If the review referred to in the preceding paragraph concludes that the inflation factor has exceeded 10 per cent, the Depositary shall notify States Parties of a revision of the limits of liability. Any such revision shall become effective six months after its notification to the States Parties. If within three months after its notification to the States 92a

Parties a majority of the States Parties register their disapproval, the revision shall not become effective and the Depositary shall refer the matter to a meeting of the States Parties. The Depositary shall immediately notify all States Parties of the coming into force of any revision. 3. Notwithstanding paragraph 1 of this Article, the procedure referred to in paragraph 2 of this Article shall be applied at any time provided that one- third of the States Parties express a desire to that effect and upon condition that the inflation factor referred to in paragraph 1 has exceeded 30 per cent since the previous revision or since the date of entry into force of this Convention if there has been no previous revision. Subsequent reviews using the procedure described in paragraph 1 of this Article will take place at five-year intervals starting at the end of the fifth year following the date of the reviews under the present paragraph. Article 25 -- Stipulation on Limits A carrier may stipulate that the contract of carriage shall be subject to higher limits of liability than those provided for in this Convention or to no limits of liability whatsoever. Article 26 -- Invalidity of Contractual Provisions Any provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in this Convention shall be null and void, but the nullity of any such provision does not involve the nullity of the whole contract, which shall remain subject to the provisions of this Convention. 93a

Article 27 -- Freedom to Contract Nothing contained in this Convention shall prevent the carrier from refusing to enter into any contract of carriage, from waiving any defences available under the Convention, or from laying down conditions which do not conflict with the provisions of this Convention. Article 28 -- Advance Payments In the case of aircraft accidents resulting in death or injury of passengers, the carrier shall, if required by its national law, make advance payments without delay to a natural person or persons who are entitled to claim compensation in order to meet the immediate economic needs of such persons. Such advance payments shall not constitute a recognition of liability and may be offset against any amounts subsequently paid as damages by the carrier. Article 29 -- Basis of Claims In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non- compensatory damages shall not be recoverable. Article 30 -- Servants, Agents -- Aggregation of Claims 1. If an action is brought against a servant or agent of the carrier arising out of damage to which the Convention relates, such servant or agent, if they 94a prove that they acted within the scope of their employment, shall be entitled to avail themselves of the conditions and limits of liability which the carrier itself is entitled to invoke under this Convention. 2. The aggregate of the amounts recoverable from the carrier, its servants and agents, in that case, shall not exceed the said limits. 3. Save in respect of the carriage of cargo, the provisions of paragraphs 1 and 2 of this Article shall not apply if it is proved that the damage resulted from an act or omission of the servant or agent done with intent to cause damage or recklessly and with knowledge that damage would probably result. Article 31 -- Timely Notice of Complaints 1. Receipt by the person entitled to delivery of checked baggage or cargo without complaint is prima facie evidence that the same has been delivered in good condition and in accordance with the document of carriage or with the record preserved by the other means referred to in paragraph 2 of Article 3 and paragraph 2 of Article 4. 2. In the case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within seven days from the date of receipt in the case of checked baggage and fourteen days from the date of receipt in the case of cargo. In the case of delay, the complaint must be made at the latest within twenty- one days from the date on which the baggage or cargo have been placed at his or her disposal. 3. Every complaint must be made in writing and given or dispatched within the times aforesaid. 95a

4. If no complaint is made within the times aforesaid, no action shall lie against the carrier, save in the case of fraud on its part. Article 32 -- Death of Person Liable In the case of the death of the person liable, an action for damages lies in accordance with the terms of this Convention against those legally representing his or her estate. Article 33 -- Jurisdiction 1. An action for damages must be brought, at the option of the plaintiff, in the territory of one of the States Parties, either before the court of the domicile of the carrier or of its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination. 2. In respect of damage resulting from the death or injury of a passenger, an action may be brought before one of the courts mentioned in paragraph 1 of this Article, or in the territory of a State Party in which at the time of the accident the passenger has his or her principal and permanent residence and to or from which the carrier operates services for the carriage of passengers by air, either on its own aircraft, or on another carrier’s aircraft pursuant to a commercial agreement, and in which that carrier conducts its business of carriage of passengers by air from premises leased or owned by the carrier itself or by another carrier with which it has a commercial agreement. 3. For the purposes of paragraph 2, 96a

(a) “commercial agreement” means an agreement, other than an agency agreement, made between carriers and relating to the provision of their joint services for carriage of passengers by air; (b) “principal and permanent residence” means the one fixed and permanent abode of the passenger at the time of the accident. The nationality of the passenger shall not be the determining factor in this regard. 4. Questions of procedure shall be governed by the law of the court seised of the case. Article 34 -- Arbitration 1. Subject to the provisions of this Article, the parties to the contract of carriage for cargo may stipulate that any dispute relating to the liability of the carrier under this Convention shall be settled by arbitration. Such agreement shall be in writing. 2. The arbitration proceedings shall, at the option of the claimant, take place within one of the jurisdictions referred to in Article 33. 3. The arbitrator or arbitration tribunal shall apply the provisions of this Convention. 4. The provisions of paragraphs 2 and 3 of this Article shall be deemed to be part of every arbitration clause or agreement, and any term of such clause or agreement which is inconsistent therewith shall be null and void. Article 35 -- Limitation of Actions 1. The right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have 97a arrived, or from the date on which the carriage stopped. 2. The method of calculating that period shall be determined by the law of the court seised of the case. Article 36 -- Successive Carriage 1. In the case of carriage to be performed by various successive carriers and falling within the definition set out in paragraph 3 of Article 1, each carrier which accepts passengers, baggage or cargo is subject to the rules set out in this Convention and is deemed to be one of the parties to the contract of carriage in so far as the contract deals with that part of the carriage which is performed under its supervision. 2. In the case of carriage of this nature, the passenger or any person entitled to compensation in respect of him or her can take action only against the carrier which performed the carriage during which the accident or the delay occurred, save in the case where, by express agreement, the first carrier has assumed liability for the whole journey. 3. As regards baggage or cargo, the passenger or consignor will have a right of action against the first carrier, and the passenger or consignee who is entitled to delivery will have a right of action against the last carrier, and further, each may take action against the carrier which performed the carriage during which the destruction, loss, damage or delay took place. These carriers will be jointly and severally liable to the passenger or to the consignor or consignee.

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Article 37 -- Right of Recourse against Third Parties Nothing in this Convention shall prejudice the question whether a person liable for damage in accordance with its provisions has a right of recourse against any other person. Chapter IV Combined Carriage Article 38 -- Combined Carriage 1. In the case of combined carriage performed partly by air and partly by any other mode of carriage, the provisions of this Convention shall, subject to paragraph 4 of Article 18, apply only to the carriage by air, provided that the carriage by air falls within the terms of Article 1. 2. Nothing in this Convention shall prevent the parties in the case of combined carriage from inserting in the document of air carriage conditions relating to other modes of carriage, provided that the provisions of this Convention are observed as regards the carriage by air. Chapter V Carriage by Air Performed by a Person other than the Contracting Carrier Article 39 -- Contracting Carrier -- Actual Carrier The provisions of this Chapter apply when a person (hereinafter referred to as “the contracting carrier”) as a principal makes a contract of carriage governed by this Convention with a passenger or consignor or with a person acting on behalf of the passenger or consignor, and another person (hereinafter referred to 99a as “the actual carrier”) performs, by virtue of authority from the contracting carrier, the whole or part of the carriage, but is not with respect to such part a successive carrier within the meaning of this Convention. Such authority shall be presumed in the absence of proof to the contrary. Article 40 -- Respective Liability of Contracting and Actual Carriers If an actual carrier performs the whole or part of carriage which, according to the contract referred to in Article 39, is governed by this Convention, both the contracting carrier and the actual carrier shall, except as otherwise provided in this Chapter, be subject to the rules of this Convention, the former for the whole of the carriage contemplated in the contract, the latter solely for the carriage which it performs. Article 41 -- Mutual Liability 1. The acts and omissions of the actual carrier and of its servants and agents acting within the scope of their employment shall, in relation to the carriage performed by the actual carrier, be deemed to be also those of the contracting carrier. 2. The acts and omissions of the contracting carrier and of its servants and agents acting within the scope of their employment shall, in relation to the carriage performed by the actual carrier, be deemed to be also those of the actual carrier. Nevertheless, no such act or omission shall subject the actual carrier to liability exceeding the amounts referred to in Articles 21, 22, 23 and 24. Any special agreement under which the contracting carrier assumes obligations not imposed by this Convention or any waiver of rights or defences conferred by this Convention or any special 100a declaration of interest in delivery at destination contemplated in Article 22 shall not affect the actual carrier unless agreed to by it. Article 42 -- Addressee of Complaints and Instructions Any complaint to be made or instruction to be given under this Convention to the carrier shall have the same effect whether addressed to the contracting carrier or to the actual carrier. Nevertheless, instructions referred to in Article 12 shall only be effective if addressed to the contracting carrier. Article 43 -- Servants and Agents In relation to the carriage performed by the actual carrier, any servant or agent of that carrier or of the contracting carrier shall, if they prove that they acted within the scope of their employment, be entitled to avail themselves of the conditions and limits of liability which are applicable under this Convention to the carrier whose servant or agent they are, unless it is proved that they acted in a manner that prevents the limits of liability from being invoked in accordance with this Convention. Article 44 -- Aggregation of Damages In relation to the carriage performed by the actual carrier, the aggregate of the amounts recoverable from that carrier and the contracting carrier, and from their servants and agents acting within the scope of their employment, shall not exceed the highest amount which could be awarded against either the contracting carrier or the actual carrier under this Convention, but none of the persons mentioned shall be liable for a sum in excess of the limit applicable to that person. 101a

Article 45 -- Addressee of Claims In relation to the carriage performed by the actual carrier, an action for damages may be brought, at the option of the plaintiff, against that carrier or the contracting carrier, or against both together or separately. If the action is brought against only one of those carriers, that carrier shall have the right to require the other carrier to be joined in the proceedings, the procedure and effects being governed by the law of the court seised of the case. Article 46 -- Additional Jurisdiction Any action for damages contemplated in Article 45 must be brought, at the option of the plaintiff, in the territory of one of the States Parties, either before a court in which an action may be brought against the contracting carrier, as provided in Article 33, or before the court having jurisdiction at the place where the actual carrier has its domicile or its principal place of business. Article 47 -- Invalidity of Contractual Provisions Any contractual provision tending to relieve the contracting carrier or the actual carrier of liability under this Chapter or to fix a lower limit than that which is applicable according to this Chapter shall be null and void, but the nullity of any such provision does not involve the nullity of the whole contract, which shall remain subject to the provisions of this Chapter.

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Article 48 -- Mutual Relations of Contracting and Actual Carriers Except as provided in Article 45, nothing in this Chapter shall affect the rights and obligations of the carriers between themselves, including any right of recourse or indemnification. Chapter VI Other Provisions Article 49 -- Mandatory Application Any clause contained in the contract of carriage and all special agreements entered into before the damage occurred by which the parties purport to infringe the rules laid down by this Convention, whether by deciding the law to be applied, or by altering the rules as to jurisdiction, shall be null and void. Article 50 -- Insurance States Parties shall require their carriers to maintain adequate insurance covering their liability under this Convention. A carrier may be required by the State Party into which it operates to furnish evidence that it maintains adequate insurance covering its liability under this Convention. Article 51 -- Carriage Performed in Extraordinary Circumstances The provisions of Articles 3 to 5, 7 and 8 relating to the documentation of carriage shall not apply in to case of carriage performed in extraordinary circumstances outside the normal scope of a carrier business. 103a

Article 52 -- Definition of Days The expression “days” when used in this Convention means calendar days, not working days. Chapter VII Final Clauses Article 53 -- Signature, Ratification and Entry into Force 1. This Convention shall be open for signature in Montreal on 28 May 1999 by States participating in the International Conference on Air Law held at Montreal from 10 to 28 May 1999. After 28 May 1999, the Convention shall be open to all States for signature at the Headquarters of the International Civil Aviation Organization in Montreal until it enters into force in accordance with paragraph 6 of this Article. 2. This Convention shall similarly be open for signature by Regional Economic Integration Organisations. For the purpose of this Convention, a “Regional Economic Integration Organisation” means any organisation which is constituted by sovereign States of a given region which has competence in respect of certain matters governed by this Convention and has been duly authorized to sign and to ratify, accept, approve or accede to this Convention. A reference to a “State Party” or “States Parties” in this Convention, otherwise than in paragraph 2 of Article 1, paragraph 1(b) of Article 3, paragraph (b) of Article 5, Articles 23, 33, 46 and paragraph (b) of Article 57, applies equally to a Regional Economic Integration Organisation. For the purpose of Article 24, the references to “a majority of the States Parties” 104a and “one-third of the States Parties” shall not apply to a Regional Economic Integration Organisation. 3. This Convention shall be subject to ratification by States and by Regional Economic Integration Organisations which have signed it. 4. Any State or Regional Economic Integration Organisation which does not sign this Convention may accept, approve or accede to it at any time. 5. Instruments of ratification, acceptance, approval or accession shall be deposited with the International Civil Aviation Organization, which is hereby designated the Depositary. 6. This Convention shall enter into force on the sixtieth day following the date of deposit of the thirtieth instrument of ratification, acceptance, approval or accession with the Depositary between the States which have deposited such instrument. An instrument deposited by a Regional Economic Integration Organisation shall not be counted for the purpose of this paragraph. 7. For other States and for other Regional Economic Integration Organisations, this Convention shall take effect sixty days following the date of deposit of the instrument of ratification, acceptance, approval or accession. 8. The Depositary shall promptly notify all signatories and States Parties of: (a) each signature of this Convention and date thereof; (b) each deposit of an instrument of ratification, acceptance, approval or accession and date thereof; 105a

(c) the date of entry into force of this Convention; (d) the date of the coming into force of any revision of the limits of liability established under this Convention; (e) any denunciation under Article 54. Article 54 -- Denunciation 1. Any State Party may denounce this Convention by written notification to the Depositary. 2. Denunciation shall take effect one hundred and eighty days following the date on which notification is received by the Depositary. Article 55 -- Relationship with other Warsaw Convention Instruments This Convention shall prevail over any rules which apply to international carriage by air: 1. between States Parties to this Convention by virtue of those States commonly being Party to (a) the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on 12 October 1929 (hereinafter called the Warsaw Convention); (b) the Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on 12 October 1929, Done at The Hague on 28 September 1955 (hereinafter called The Hague Protocol); (c) the Convention, Supplementary to the Warsaw Convention, for the Unification of Certain Rules Relating to International Carriage by Air 106a

Performed by a Person Other than the Contracting Carrier, signed at Guadalajara on 18 September 1961 (hereinafter called the Guadalajara Convention); (d) the Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on 12 October 1929 as Amended by the Protocol Done at The Hague on 28 September 1955 Signed at Guatemala City on 8 March 1971 (hereinafter called the Guatemala City Protocol); (e) Additional Protocol Nos. 1 to 3 and Montreal Protocol No. 4 to amend the Warsaw Convention as amended by The Hague Protocol or the Warsaw Convention as amended by both The Hague Protocol and the Guatemala City Protocol Signed at Montreal on 25 September 1975 (hereinafter called the Montreal Protocols); or 2. within the territory of any single State Party to this Convention by virtue of that State being Party to one or more of the instruments referred to in sub- paragraphs (a) to (e) above. Article 56 -- States with more than one System of Law 1. If a State has two or more territorial units in which different systems of law are applicable in relation to matters dealt with in this Convention, it may at the time of signature, ratification, acceptance, approval or accession declare that this Convention shall extend to all its territorial units or only to one or more of them and may modify this declaration by submitting another declaration at any time. 107a

2. Any such declaration shall be notified to the Depositary and shall state expressly the territorial units to which the Convention applies. 3. In relation to a State Party which has made such a declaration: (a) references in Article 23 to “national currency” shall be construed as referring to the currency of the relevant territorial unit of that State; and (b) the reference in Article 28 to “national law” shall be construed as referring to the law of the relevant territorial unit of that State. Article 57 -- Reservations No reservation may be made to this Convention except that a State Party may at any time declare by a notification addressed to the Depositary that this Convention shall not apply to: (a) international carriage by air performed and operated directly by that State Party for non- commercial purposes in respect to its functions and duties as a sovereign State; and/or (b) the carriage of persons, cargo and baggage for its military authorities on aircraft registered in or leased by that State Party, the whole capacity of which has been reserved by or on behalf of such authorities. IN WITNESS WHEREOF the undersigned Plenipotentiaries, having been duly authorized, have signed this Convention. DONE at Montreal on the 28th day of May of the year one thousand nine hundred and ninety-nine in the English, Arabic, Chinese, French, Russian and 108a

Spanish languages, all texts being equally authentic. This Convention shall remain deposited in the archives of the International Civil Aviation Organization, and certified copies thereof shall be transmitted by the Depositary to all States Parties to this Convention, as well as to all States Parties to the Warsaw Convention, The Hague Protocol, the Guadalajara Convention, the Guatemala City Protocol, and the Montreal Protocols.