V. THE WARSAW CONVENTION'S PRECLUSION OF RECOVERY FOR PUNITIVE DAMAGES.
The Warsaw Convention,
as amended by the Montreal Agreement,
applies to international air flights which stop in or leave from the United States. It provides for strict liability against the air carrier, with a liability cap of $ 75,000 which is waived where plaintiffs can show "wilful misconduct." The Convention preempts local law which conflicts with the scheme of the Convention. See In Re Aircrash in Bali, Indonesia on April 22, 1974, 684 F.2d 1301, 1307 (9th Cir. 1982); Warsaw Convention Article 24.
In interpreting the Warsaw Convention, a court must be governed by the text of the Convention where it is clear, and has "no power to insert an amendment." Chan v. Korean Air Lines, 490 U.S. 122, 109 S. Ct. 1676, 1684-85 , 104 L. Ed. 2d 113 (1989). The "intricate drafting history" of the Convention may only be relied upon where the text is ambiguous, and even then the text's "most natural meaning [can] properly be contradicted only by clear drafting history." Id. and 1684 n.5. The governing text of the Convention is the French language version. Air France v. Saks, 470 U.S. 392, 397, 84 L. Ed. 2d 289 , 105 S. Ct. 1338 (1985). A court interpreting the Convention must attempt "to give the specific words of the treaty a meaning consistent with the shared expectations of the contracting parties. We look to the French legal meaning for guidance as to these expectations because the Warsaw Convention was drafted in French by continental jurists." Id. at 399 (citations omitted). Plaintiffs do not appear to contend that the Warsaw Convention itself gives them a cause of action for punitive damages. Rather they contend that they may claim punitive damages under general maritime law,
and that the Warsaw Convention does not pre-empt that claim. They contend that the Convention does not address the issue of damages, other than the $ 75,000 liability cap, and that within the cap, the Convention contemplated that each nation will apply its own law regarding damages. Defendants counter that the Convention contemplates a scheme of compensatory damages, and that to allow punitive damages would conflict with that provision of the Convention, as well as undermine the primary goals of the Convention -- establishing uniform rules of liability in international air cases, and limiting liability.
The only circuit court decision on point is Floyd v. Eastern Air Lines, 872 F.2d 1462, 1485-89 (11th Cir. 1989), cert. granted, 58 U.S.L.W. 3768. Floyd held that the Warsaw Convention precludes plaintiffs from recovering punitive damages under a state law claim. Floyd analyzed "the text and structure of the Convention, and the concurrent and subsequent legislative history" to conclude that "Article 17 is entirely compensatory in nature."
Id. at 1486. As Article 17 provides the cause of action under the Convention,
the Floyd court concluded that no action for punitive damages lay under the Convention itself. It then held that allowing punitive damages under a state cause of action would be inconsistent with the Convention's compensatory scheme. Id. at 1487-89. It based this conclusion on the preeminent goals of the Convention -- limitation of liability, and uniformity of rules of liability. Punitive damages would increase liability exposure, and would decrease uniformity because punitive damages are available in some forums but not others.
This court finds Floyd largely convincing, and in the absence of contrary appellate authority, persuasive.
There is some ambiguous Ninth Circuit authority indicating that the Convention does not address the issue of damages at all instead leaving the measure of damages up to local law.
That authority, however, is consistent with the conclusion that the Convention contemplates only compensatory damages, leaving the measure of those compensatory damages to local law.
Plaintiffs rely on the "respective rights" language of Article 24(2)
to contend that the Convention expressly reserves to local law issues regarding measure of damages. That reliance is misplaced in light of the Ninth Circuit's conclusion that the "respective rights" language of Article 24(2) refers to local law merely the question of "who are 'the persons upon whom the action devolves in the case of death . . .'" Mexico City Aircrash, 708 F.2d at 413-14; see also In Re Air Disaster in Lockerbie, 733 F. Supp. at 547, 551, reh. denied, app. granted, 736 F. Supp. 18 (E.D.N.Y. 1990) ("respective rights" clause refers merely to local laws of descent and distribution).
Plaintiffs contend that even if Article 17 is read as precluding punitive damages, Article 25 removes that prohibition in cases where a plaintiff can show wilful misconduct by the carrier.
Floyd relied on "the structure of the Convention, the subsequent interpretation by the parties, and the unanimous case law," 872 F.2d at 1483, to conclude that Article 25 was intended to remove only Article 22's $ 75,000 cap, not any other limitations on liability. That conclusion however was rejected by In re Hijacking of Pan American World Airways, 729 F. Supp. 17, 20 (S.D.N.Y. 1990). Pan American relied on the Supreme Court's admonishment in Chan, decided after the Floyd opinion, that extrinsic evidence of the Convention's drafters' intent may only be considered where the text is ambiguous, and even then only "clear drafting history" may contradict the text's most natural meaning. 109 S. Ct. at 1683-84 and n.5. The Pan American court found Article 25's language unambiguous: "Pan Am's interpretation, if accepted, would require the Court to construe Article 25 as if it read 'the provision, to wit Article 22, . . . which limits the amount of his liability' which would constitute a judicial alteration of the plain language of the Convention foreclosed by Chan."
Pan American, 729 F. Supp. at 20. Pan American held, therefore, that "to the extent that Article 17 is construed to preempt a claim for punitive damages,
it would be a limitation or exclusion of liability within the meaning of Article 25, and such claims would not be barred in cases involving wilful misconduct." Id.24
This court also notes that Article 25's use of the phrase "exclude or limit" might be read as indicating that where wilful misconduct is shown, something more than merely the $ 75,000 "limit" is waived by the carrier.
Plaintiffs contend, moreover, that allowing punitive damages would be supportive of the underlying purposes of the Convention. They point to Article 25's removal of liability limits in cases of wilful misconduct as evidence that the Convention sought to deter wilful misconduct. Allowing punitive damages, at least where wilful misconduct is shown, plaintiffs contend, would thus be in furtherance of the purposes of the Convention.
The weight of authority tends towards the conclusion that punitive damages are unavailable in an action governed by the Warsaw convention, even where wilful misconduct is shown.
The arguments raised against this conclusion, and discussed above, are not without some persuasive effect. The court is convinced that a punitive damages award, if any, would have to be preceded by a showing of wilful misconduct within the meaning of the Convention. If and when plaintiffs have made such a showing, they may again raise the issue of the availability of punitive damages, and the court will consider it at that time, but not before.
V. CLASS ACTION CERTIFICATION, DISCOVERY OF THE PASSENGER LIST AND RELATED ISSUES
At the July 10, 1990 hearing on the motions considered herein, the court took up with counsel plaintiffs' request to certify under F.R. Civ. P. 23, a class of the passengers who have not yet sued as well as plaintiffs' request for production of the Flight 811 passenger list. Plaintiffs' counsel are, of course, interested in rounding up as many passengers as possible to press claims and defendants, in resisting this effort, hence the parties' respective positions.
Because, however, individual issues would seem to predominate in any collection of personal injury claims, it is not clear that a Rule 23 class action is suitable. In any event, no class certification motion is currently pending. Plaintiffs' memorandum in support of a prior certification motion was stricken for failure to comply with the Local Rules. That motion could, however, be renewed easily and the court has read and considered all of plaintiffs' papers on the subject.
The court has also considered another possibility and an alternative to class certification: namely, requiring notice to the passengers who have not sued to advise them of these proceedings. In that connection, the court has considered the Supreme Court's decision in Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 110 S. Ct. 482; 1989 U.S. LEXIS 5910 , 107 L. Ed. 2d 480 (1989). There, the Supreme Court approved court-supervised notice to possible claimants under the Age Discrimination in Employment Act, 29 U.S.C. § 621, et. seq. The Court bottomed this approval on principles of efficient case management and, indeed, there is a certain attractiveness to such an approach in the present case.
Hoffman-La Roche is, however, clearly distinguishable from this case and, in any event, does not require this court to adopt that same approach here. Moreover, the court is impressed by the dissent which argues that court-initiated notice to potential claimants may represent an extraordinary and untoward expansion of federal judicial power, inconsistent with fundamental constitutional principles. Because of this concern, the undersigned is not inclined to initiate notice to potential claimants except where the Supreme Court or the Ninth Circuit has expressly authorized such notice and it is demonstrably needed. While this court in no way faults plaintiffs' counsel for seeking to gather as many claimants as possible and does not believe that such efforts constitute improper solicitation, short of plaintiffs' satisfying the requirements for class certification under Rule 23 (which, of course, does provide for notice), it is not appropriate for this court to help plaintiffs' counsel round up more clients. There may be other grounds for production of the passenger list (e.g., identification of witnesses) or the class certification may be renewed, but the court is not prepared further to consider these matters at this time.
1. General maritime law will apply to this action to the extent that it is not preempted by provisions of the Warsaw Convention, or the Death on the High Seas Act.
2. The representatives of the deceased passengers must bring their actions under the Death on the High Seas Act.
3. Non-pecuniary damages under the general maritime law are not available to DOHSA plaintiffs.
4. The court reserves judgment whether any non-pecuniary damages that may be available under the Warsaw Convention are available to DOHSA plaintiffs.
5. The Warsaw Convention precludes an award of punitive damages against United unless a showing of wilful misconduct by United is made and, after such misconduct has been established, the court may reconsider the possible recovery of such damages.
6. DOHSA plaintiffs are not entitled to a jury trial unless they can assert a cause of action under the Warsaw Convention for damages not available under DOHSA.
7. The court reserves judgment on the availability of trial by jury for any remaining claims.
8. Plaintiffs' motion for class certification and request for production of the passenger list are denied without prejudice.
IT IS SO ORDERED.
DATED: August 13, 1990
VAUGHN R. WALKER
United States District Judge