In the recent decision of Ehrlich v. American Airlines, 02-9462, from the U.S. Court of Appeals for the Second Circuit in New York, the court held that under the Warsaw Convention, which governs airline liability on international flights, a passenger can recover for mental injuries only if they flow from and are caused by bodily injuries. In an extensive analysis, the court reviewed the French text of the Warsaw Convention, the negotiations that led to the adoption of that treaty, the goals its provisions aim to address, French law, the opinions (judicial and otherwise) of the United States' sister convention signatories at the recent Montreal Convention, and the meaning attributed to Article 17 of the Warsaw Convention by the Executive Branch of the United States.
To determine whether the district court properly construed the reach of the Warsaw Convention, the New York appellate court was required to interpret the treaty and determine the meaning of Article 17. The English translation of Article 17, as employed by the Senate when it ratified the Warsaw Convention in 1935, provides that:
The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
In Eastern Airlines v. Floyd, 499 U.S. 530, 552-53 (1991), the United States Supreme Court analyzed the meaning of this provision and held that carriers could not be held liable under Article 17 for mental injuries that did not accompany bodily injuries. However, the Supreme Court "express[ed] no view as to whether passengers [could] recover for mental injuries that [were] accompanied by physical injuries." Id. at 552.
To resolve the issue presented in Ehrlich v. American Airlines, the New York appellate court was called upon to address the question left unresolved by the Supreme Court in Floyd. The court had to evaluate the Warsaw Convention and determine whether carriers may be held liable under Article 17 for mental injuries that accompany, but are not caused by, bodily injuries. As the appellate court stated in its opinion: "Our exhaustive examination ... leads us to conclude that a carrier may be held liable under Article 17 for mental injuries only if they are caused by bodily injuries."
Clearly, when faced with an issue involving whether or not an airline might be held liable for a passenger's alleged mental distress pursuant to the Warsaw Convention, the Ehrlich decision should be consulted as it provides a comprehensive overview of existing law. Further, the Ehrlich opinion provides a glimpse of how courts might analyze the same issues under the Montreal Convention.
The Accident at JFK Airport in New York
The underlying facts and procedural posture of the case before the Second Circuit Court of Appeals in New York are straightforward. In May 1999, Gary and Maryanne Ehrlich boarded an American Eagle flight in Baltimore, Maryland. They intended to travel to JFK Airport in New York, where they were scheduled to connect to an American Airlines flight to London. When their flight reached JFK, the plane overshot the runway just short of Thurston Bay and was stopped by the airport's arrestor bed, the Engineered Materials Arresting System, which provides drag forces to bring aircraft to a halt. Once the plane stopped at the water,s edge, the passengers evacuated by jumping approximately six to eight feet to the ground.
The Alleged Bodily Injuries
The Ehrlichs contended that they suffered bodily injuries during the course of the landing and the ensuing evacuation. Gary Ehrlich allegedly sustained knee injuries, while Maryanne Ehrlich purportedly sustained injuries to her neck, back, shoulder, hips, and right knee. After the accident, Maryanne Ehrlich also allegedly developed hypertension and a heart problem.
The Alleged Mental Injuries
In addition to the bodily injuries alleged, the Ehrlichs further contended that they sustained mental injuries. According to the evidence presented to the district court, both Gary and Maryanne Ehrlich suffered from a fear of flying after the accident. Gary Ehrlich also apparently experienced nightmares concerning the aircraft landing and evacuation. Similarly, Maryanne Ehrlich reported that she periodically had trouble sleeping as a result of the accident.
The Passengers' Lawsuit and the Airlines' Request That Their Mental Injury Claims Be Dismissed
In September 1999, the Ehrlichs commenced a lawsuit, pursuant to the Warsaw Convention, against American Airlines, American Eagle, and in the New York district court Simmons Airlines in an effort to recover damages for both their physical and psychological injuries. After deposing the Ehrlichs, the airline defendants moved for partial summary judgment. They asked the district court to dismiss the Ehrlichs' claims for mental injuries on two grounds. First, the airline defendants argued that the Ehrlichs had failed to prove that they had sustained such mental injuries. Second, the airline defendants contended that, even if the Ehrlichs had suffered the alleged injuries, the mental damages in question did not flow from their bodily injuries and that carriers were liable under the Warsaw Convention only for psychological injuries that were caused by bodily injuries.
The Ehrlichs opposed the airlines' motion. They argued that they, in fact, had sustained mental injuries. They also took the position that carriers could be held liable under the Warsaw Convention as long as a mental injury accompanied a physical injury, regardless of whether the two distinct types of injuries shared a causal relationship. Finally, although they never filed a formal cross-motion for summary judgment with respect to the matter, the Ehrlichs asked the district court to grant them partial summary judgment on the issue of carrier liability under the Warsaw Convention. In essence, the Ehrlichs argued that, under the International Air Transport Association Intercarrier Agreement on Passenger Liability, the airline defendants were strictly liable for damages up to the equivalent of $140,000 and that the airlines bore the burden of proving that they had taken all necessary measures to avoid damages sustained in excess of that amount.
The district court heard oral argument at which time the court granted the Ehrlichs' "crossmotion" or partial summary judgment on the issue of liability under the Intercarrier Agreement. However, the court reserved decision on the airline defendants' motion for partial summary judgment. A month later, after further consideration of the issue, the district court granted partial summary judgment in favor of the airline defendants.
The District Court Grants the Airlines' Motion Dismissing the Claim for Mental Injuries
On reviewing the applicable case law, the district court determined that "[u]nder the Warsaw Convention, a plaintiff may recover for emotional damages caused by physical injuries." The court found that the Ehrlichs had offered no evidence demonstrating a causal connection between their mental and physical injuries. Because the district court concluded that the Ehrlichs had "not raised a genuine issue of fact regarding a causal connection between their alleged bodily injuries and their mental suffering," the court granted the airline defendants' motion for partial summary judgment, holding that the Ehrlichs could "not recover for their emotional trauma resulting solely from the aberrant landing and evacuation."
The Passengers Settle Their Bodily Injury Claims and Appeal the Dismissal of Their Mental Injury Claims
After declining the Ehrlichs' request to have the issue certified for an interlocutory appeal, the district court set a trial date for the remaining issues pertaining to liability for bodily injuries. With a trial date imminent, the Ehrlichs decided to discontinue their lawsuit against American Airlines and Simmons Airlines. American Eagle filed an Offer of Judgment in the amount of $100,000 against that airline to resolve the bodily injury claims. The Ehrlichs accepted American Eagle's offer on condition that their acceptance was "without prejudice to plaintiffs' right to appeal from "the order of partial summary judgment against them, i.e., denying their mental damages claims. The district court issued a judgment that conformed to both American Eagle's offer and the Ehrlichs' conditional acceptance of it. The court entered a judgment in the amount of $100,000 against American Eagle in complete satisfaction of the Ehrlichs' claims for bodily injury. The court also entered a judgment in favor of the airline defendants pursuant to its earlier order granting their motion for partial summary judgment with respect to the Ehrlichs' claims for mental injuries; the judgment entered by the district court was expressly without prejudice to the Ehrlichs' right to appeal from the partial summary judgment decision. The Ehrlichs then filed their appeal.
On appeal, the Ehrlichs argued that the approach to dealing with liability under the Warsaw Convention had changed with the United States' ratification of the recent Montreal Convention on July 31, 2003, which occurred after the district court ruled that their mental distress damages not caused by physical injury were not recoverable. As described, the district court held that Article 17 of the Warsaw Convention restricted recovery only to "damages sustained in the event of bodily injury." The district court further ruled that there was no causal connection between the Ehrlichs' physical injuries and their mental problems and, therefore, no recovery for mental injuries could be had. The passengers argued that the Montreal Convention changed that.
The New York Court of Appeals is Not Persuaded that the Montreal Convention Changes the Legal Analysis
The New York appellate court concluded that the new Montreal Convention would not govern the Ehrlichs' appeal because the accident predated the Convention's ratification. Although the accident at JFK Airport occurred a number of years before the Montreal Convention, the views of the delegates attending the convention in Montreal nevertheless were given consideration by the appellate court because the court believed the delegates' views could provide guidance on how key phrases in the Warsaw Convention were intended in 1929 and should be interpreted today. However, upon evaluating the statements made by the delegates, while there was some discussion of extending carrier liability to mental injuries, the delegates' "discussions did not lead to a general consensus on the subject; rather, they evidence[d] a discordant chorus of voices." Under the circumstances, the appellate court ruled that the history of Article 17 of the Warsaw Convention supports the view that passengers can bring an action to recover for "mental injuries but only to the extent that they flow from the bodily injuries." Mental injuries alone, or mental injuries that are independent of the bodily injuries caused by the accident, are not enough.
As the court stated, "[s]ince a remedy for mental injuries was unknown to many, if not most, jurisdictions in 1929, the drafters of the Warsaw Convention most likely would have felt a need to make an unequivocal reference to that type of liability if they had intended passengers to recover for such injuries." According to the appellate court, nothing the delegates most recently discussed at the Montreal Convention changes the generally accepted viewpoint that mental injuries must flow from and be caused by bodily injuries.
Based on a survey of the Warsaw Convention's history and the interpretation of statements made by delegates at the Montreal Convention, according to this New York appellate court, "the negotiating history of the Warsaw Convention demonstrates that the phrase 'domage servenu en cas de... lesion corporelle' should be read to impose a causation requirement." Simply put, in order to obtain a damage recovery for mental distress under the Warsaw Convention, the distress must flow from, and be caused by an actual physical injury resulting from the accident. This, the court found, remains consistent with the primary purpose of the Warsaw Convention – to limit the liability of the airlines.
What the Future Holds Under the Montreal Convention
As noted above, the New York appellate court did not evaluate the Ehrlichs' appeal pursuant to the Montreal Convention because the accident at JFK Airport predated the Convention's ratification. The important thing to note is that the court did assess comments about mental injuries made during the Montreal Convention to see if they might be applied to the Warsaw Convention. As is evident, the delegates' comments did not help the Ehrlichs' claim that they should recover mental injury damages under the Warsaw Convention. How will this evaluation by the New York appellate court apply to future cases that are governed by the Montreal Convention? The key to answering this question is to first understand the relationship between the new Montreal Convention and the Warsaw Convention of 1929.
The Montreal Convention is the product of an effort by the International Civil Aviation Organization, a specialized agency of the United Nations to reform the Warsaw Convention so as to "harmonize the hodgepodge of supplementary amendments and intercarrier agreements" of which the Warsaw Convention system of liability consists. In May 1999, the agency convened an international conference in Montreal, Canada. Nations gathered at the conference to negotiate and adopt a new treaty that would replace the Warsaw Convention. More than 500 delegates, representing 121 states, attended the conference in Montreal from May 10, 1999, until May 28, 1999. On the last day of the conference, the delegates approved a new Convention for the Unification of Certain Rules for International Carriage by Air, which has come to be known as the Montreal Convention. Fifty-two countries, including the United States, soon after signed the treaty.
The Montreal Convention is not an amendment to the Warsaw Convention. Rather, the Montreal Convention is an entirely new treaty that unifies and replaces the system of liability that derives from the Warsaw Convention.
Whereas the "primary aim of the contracting parties to the [Warsaw] Convention" was to limit "the liability of air carriers in order to foster the growth of the ... commercial aviation industry," the contracting parties to the Montreal Convention expressly approved that treaty because, among other reasons, they recognized "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." The Senate also recognized that the "[t]he new Montreal Convention represents the culmination of decades of efforts by the United States and other countries to establish a regime providing increased protection for international air travelers and shippers." As a result, legal commentators have described the Montreal Convention, unlike the Warsaw Convention, as a treaty that favors passengers rather than airlines.
Notwithstanding this shift in treaty focus to protect consumers/passengers, the Ehrlich decision would appear to indicate that at least with regard to the recovery for mental injuries on international flights, nothing has changed – there remains a strict recovery limitation, just as it existed under the Warsaw Convention in 1929.
For more information on this issue or other Aviation matters, please contact:
- Stephen C. Johnson at (415) 984-8222
- Brian C. Dalrymple at (415) 984-8275
- Hugh R. Koss at (415) 984-8414
- William L. Robinson at (949) 475-6911
- Donald B. MacDougall at (516) 832-7611
- Kyle Levine at (415) 984-8272
- Eric Strain at (415) 984-8373
- Lori Winfree at (949) 475-6916