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Recovery of Emotional Distress Damages Under Article 17 of the Warsaw Convention: the American Versus the Israeli Approach Dafna Yoran

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Recovery of Emotional Distress Damages Under Article 17 of the Warsaw Convention: the American Versus the Israeli Approach Dafna Yoran Brooklyn Journal of International Law Volume 18 Issue 3 Symposium: The mpI act of European Integration on Article 7 Intellectual Properties 4-1-1992 Recovery of Emotional Distress Damages Under Article 17 of the Warsaw Convention: The American Versus the Israeli Approach Dafna Yoran Follow this and additional works at: https://brooklynworks.brooklaw.edu/bjil Recommended Citation Dafna Yoran, Recovery of Emotional Distress Damages Under Article 17 of the Warsaw Convention: The American Versus the Israeli Approach, 18 Brook. J. Int'l L. 811 (1992). Available at: https://brooklynworks.brooklaw.edu/bjil/vol18/iss3/7 This Note is brought to you for free and open access by the Law Journals at BrooklynWorks. It has been accepted for inclusion in Brooklyn Journal of International Law by an authorized editor of BrooklynWorks. COMMENTS RECOVERY OF EMOTIONAL DISTRESS DAMAGES UNDER ARTICLE 17 OF THE WARSAW CONVENTION: THE AMERICAN VERSUS THE ISRAELI APPROACH I. INTRODUCTION International courts have been inconsistent in their deci- sions as to whether, under the Warsaw Convention, plaintiffs should be allowed to recover damages for purely emotional inju- ries resulting from aircraft accidents. Two diametrically opposed views on recovery are exemplified by the decisions of the United States Supreme Court and the Supreme Court of Israel. The United States Supreme Court has refused to allow recovery of purely psychic damages. The Supreme Court of Israel, on the other hand, has maintained that the Warsaw Convention allows for recovery of emotional distress damages. This inconsistency on the international level has caused confusion among judges and scholars worldwide and has enabled prospective plaintiffs to shop for a forum which would better serve their purposes. In April 1991, the United States Supreme Court reversed the decision of the United States Court of Appeals for the Elev- enth Circuit in Eastern Airlines, Inc. v. Floyd,1 thereby denying passengers recovery for psychic trauma. The Supreme Court's decision in Floyd resolved the question, long debated among the lower courts, of whether the Convention for the Unification of Certain Rules Relating to International Transportation by Air2 (commonly known as the "Warsaw Convention"), a multina- 1. 111 S. Ct. 1489 (1991). 2. Convention for the Unification of Certain Rules Relating to International Trans- portation by Air, Oct 12, 1929, 137 L.N.T.S. 11 (adhered to by the U.S. on June 27, 1934) [hereinafter Warsaw Convention]. BROOKLYN J. INT'L L. [Vol. XVIII'3 tional treaty governing air carrier liability, allows an airline pas- senger to collect damages for emotional distress unaccompanied by bodily injuries.3 While providing for uniformity in the ap- proach of American courts to this question, the Supreme Court's decision has generated an inconsistency on an international level. In 1984, the Supreme Court of Israel, the only other su- preme court that has contended with the issue,4 asserted in Air France v. Teichner5 that the Warsaw Convention does create a cause of action for purely psychic injuries sustained during in- ternational flight accidents.' Given these differing interpreta- tions, when other parties to the Convention are confronted with this issue, some may choose to follow the precedent set by the Supreme Court of the United States, while others may prefer to adhere to the Israeli interpretation. Such opposing interpreta- tions by the courts of different countries would encourage airline passengers who have suffered emotional distress on international flights to shop for forums which would allow for recovery. The Warsaw Convention's drafters' goal of providing international uniformity in liability for aircraft accidents would thus be frustrated. The debate surrounding the airlines' liability for emotional damages sustained in an air carrier accident focuses on the 3. Eastern Airlines, Inc. v. Floyd, 111 S. Ct. 1489 (1991). The Supreme Court granted certiorari to resolve the conflict between the New York Court of Appeals' deci- sion in Rosman v. Trans World Airlines, 358 N.Y.S.2d 97, 314 N.E.2d 848 (Ct. App. 1974), which held that emotional distress unaccompanied by physical injury is not com- pensable under Article 17, and the Eleventh Circuit's decision in this case which permit- ted such recovery. Floyd v. Eastern Airlines, 872 F.2d 1462 (11th Cir. 1989), rev'd, 111 S. Ct. 1489 (1991). Lower courts which have allowed recovery for purely psychic injuries under Article 17 are: Borham v. Pan American World Airways, 19 Aviation Cases 18, (CCH) 236 (S.D.N.Y. 1986); Karfunkel v. Compagnie Nationale Air France, 427 F. Supp. 971 (S.D.N.Y. 1977); Krystal v. British Overseas Airways Corp., 403 F. Supp. 1322 (C.D. Cal. 1975); Husserl v. Swiss Air Transport Co., 388 F. Supp. 1238 (S.D.N.Y. 1975); Palagonia v. Trans World Airlines, 442 N.Y.S.2d 670 (Sup. Ct. 1978). Other lower courts have held that Article 17 does not encompass purely psychic damages: Burnett v. Trans World Airlines, 368 F. Supp. 1152 (D.N.M. 1973); Husserl v. Swiss Air Transport Co., 351 F. Supp. 702 (S.D.N.Y. 1972). 4. Israel and the United States are both parties to the Warsaw Convention. RENE H. MANKIEWICZ, THE LIABILITY REGIME OF THE INTERNATIONAL AR CARRIER 232-34 (1981). 5. 38 (I1) P.D. 785 (Isr. 1984). This Supreme Court case is a consolidation of two district court cases - Dadon v. Air France and Air France v. Teichner. Hereinafter, the Air France v. Teichner cite will refer to the Supreme Court resolution of both of these cases. 6. Id. at 786. 1992] EMOTIONAL DISTRESS DAMAGES proper meaning of the French phrase "lesion corporelle" that appears in Article 17 of the Warsaw Convention. Article 17 cre- ates a cause of action for passengers injured in aircraft accidents during international flights. If translated literally as "bodily in- jury," the phrase "l6sion corporelle" would not permit recovery for purely emotional damages. However, if interpreted more broadly as "personal injury," recovery for such damages may be available. The Supreme Court of the United States has chosen to interpret the phrase "l6sion corporelle" as "bodily injury," while the Supreme Court of Israel has interpreted it more broadly as "personal injury." This Comment will compare the approaches of the Supreme Court of the United States in Eastern Airlines v. Floyd7 and the Israeli Supreme Court in Air France v. Teichner.8 The intent of the drafters of the Warsaw Convention will be explored by ex- amining the French legal meaning of "l6sion corporelle," the ne- gotiating history of the Convention, and the subsequent conduct of the parties to the Convention. Finally, the Comment will dis- cuss how the goals of the drafters of the Convention relate to the two different interpretations of Article 17. This Comment will conclude that nothing in the language, negotiating history, or post-enactment interpretations of Article 17 of the Warsaw Con- vention clearly evinces intent by the drafters to allow airline passengers to recover damages for purely mental injuries. In support of the United States Supreme Court decision, this Com- ment will further conclude that Article 17 of the Warsaw Con- vention did not authorize the Supreme Court of Israel to main- tain that recovery for emotional damages unaccompanied by physical injury is permitted in the event of an aircraft accident. II. BACKGROUND A. History of the Warsaw Convention The Warsaw Convention is a multilateral treaty which es- tablishes uniform standards governing international air carriage of passengers, cargo, and baggage, and regulates the liability of international air carriers.9 This treaty governs only international 7. 111 S. Ct. 1489 (1991). 8. 38 (III) P.D. 785 (Isr. 1984). 9. Gregory C. Sisk, Recovery for Emotional Distress Under the Warsaw Conven- tion: The Elusive Search for the French Legal Meaning of Ltsion Corporelle, 25 TEx. INT'L L.J. 127, 129 (1990). BROOKLYN J. INTL L. [Vol. XVIII:3 flights; it does not govern domestic flights within the United States or any other country. The 1929 Treaty was the result of a 1925 international conference held in Paris, the work done by the interim Comit6 International Technique d'Experts Juridique Ariens (CITEJA) (a committee created by the Paris Confer- ence),' 0 and a final conference in Warsaw in 1929. The Warsaw Convention was initially signed by twenty-three countries but, in later years, many other countries have adopted the treaty.11 To- day, due to the remarkable growth of civil aviation since 1929,12 over 120 nations have chosen to become parties to the treaty, making it both a significant and widely recognized international agreement.13 In drafting the treaty, the participants of the Warsaw Con- vention attempted to fulfill three distinct objectives. First, in or- der to protect and encourage the growth of the infant airline in- dustry, the drafters intended to limit the potential liability of air carriers resulting from accidents."4 Second, because air travel transversed national boundaries and necessarily involved vary- ing legal systems, commercial practices, and languages, the par- ties wished to establish uniform rules to govern the rights and liabilities of air carriers.15 Third, the parties to the Convention wished to ensure that passengers, who would naturally have dif- ficulty proving that the air carrier failed to use all the necessary precautions to avoid accidents, would nonetheless be able to re- cover damages from the air carriers. 16 The Convention achieved these goals by establishing uni- form rules on documentation, ticketing, jurisdiction, and liabil- ity. The parties agreed that air carriers would be liable for dam- ages incurred by passengers, baggage, or cargo, but fixed a limit 10. Andreas F. Lowenfeld & Allan I. Mendelsohn, The United States and the War- saw Convention, 80 HARV.
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