The opinion of the court was delivered by: BARBARA A. CAULFIELD
On July 30, 1992, Trans World Airlines ("TWA") flight 843, departing New York's John F. Kennedy Airport for San Francisco, experienced an interruption of takeoff and crashed, igniting on impact. The plane was completely destroyed by flames but, miraculously, all passengers survived.
Flight 843 passengers filed five lawsuits in San Francisco Superior Court, seeking damages for physical injury and emotional distress. While all five complaints relied exclusively on state law theories of recovery, defendant TWA removed to federal court the three actions in which the plaintiffs held tickets for international flights. According to TWA the cause of action created by the Multilateral Convention for the Unification of Certain Rules Relating to International Transportation by Air, opened for signature October 12, 1929, 49 Stat. 3000 (1934), T.S. No. 876, reprinted at 49 U.S.C. app. § 1502 note (1988) [hereinafter Warsaw Convention], is the sole basis of recovery available to passengers injured while traveling pursuant to contracts of international carriage. Plaintiffs, however, argue that even if the Warsaw Convention preempts remedies, it does not preempt causes of action, and ask the court to remand their suits to state court.
After careful consideration of the matter, the court concludes that the cause of action under the Warsaw Convention is exclusive. Accordingly, plaintiffs' motions to remand are DENIED.
A. Federal Law on Removal and Preemption
Removal of an action from state court is proper only if the action could have been filed initially in federal court -- i.e., if there is either diversity jurisdiction or federal question jurisdiction. 28 U.S.C. § 1441(a) (1988); e.g., Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 96 L. Ed. 2d 318, 107 S. Ct. 2425 (1987). The court does not have diversity jurisdiction over these cases. As to federal question jurisdiction, its presence or absence "is governed by the 'well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint. The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law." Id. (citation omitted). "Federal pre-emption is ordinarily a federal defense to the plaintiff's suit. As a defense, it does not appear on the face of a well-pleaded complaint, and, therefore, does not authorize removal to federal court." Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 95 L. Ed. 2d 55, 107 S. Ct. 1542 (1987) (citation omitted).
"One corollary of the well-pleaded complaint rule developed in the case law, however, is that Congress may so completely pre-empt a particular area that any civil complaint raising this select group of claims is necessarily federal in character." Id. at 63-64. The intent of a treaty's contracting parties is the "touchstone" of preemption analysis. Cf. Cipollone v. Liggett Group, Inc., 120 L. Ed. 2d 407, 112 S. Ct. 2608, 2617 (1992) (intent of Congress); Metropolitan Life, 481 U.S. at 66 (same); Air France v. Saks, 470 U.S. 392, 399, 84 L. Ed. 2d 289, 105 S. Ct. 1338 (1985) ("it is our responsibility to give the specific words of the treaty a meaning consistent with the shared expectations of the contracting parties"). The Supreme Court has instructed courts to begin "with the text of the treaty and the context in which the written words are used," Air France, 470 U.S. at 397, and to look to a treaty's drafting history only if the text is ambiguous, Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 134, 109 S. Ct. 1676, 1684, 104 L. Ed. 2d 113 (1989).
B. The Text of The Warsaw Convention
Article 24 of the Warsaw Convention governs preemption:
(1) In cases covered by articles 18 [goods and luggage] and 19 [delays] any action for damages, however founded, can only be brought subject to the conditions and limits set out in this convention.
(2) In the cases covered by article 17 [personal injury and death] the provisions of the preceding paragraph shall also apply, without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights.
Warsaw Convention, supra, art. 24, 49 Stat. at 3020.
Most of the recent decisions interpreting Article 24 infer from its requirement that actions "be brought subject to the conditions and limits of the Convention" that the phrase "however founded" means "whether founded on the Convention or some other law."
See, e.g., Clarke v. United Parcel Service, Inc., 778 F. Supp. 1209, 1211 (S.D. Fla. 1991); Alvarez v. Aerovias Nacionales de Colombia, S.A., 756 F. Supp. 550, 554 (S.D. Fla. 1991); In re Aircrash Disaster at Gander, Newfoundland, 660 F. Supp. 1202, 1221 & n.43 (W.D. Ky. 1987); Rhymes v. Arrow Air, Inc., 636 F. Supp. 737, 740 (S.D. Fla. 1986); see also In re Mexico City Aircrash of Oct. 31, 1979, 708 F.2d 400, 414 n.25 (9th Cir. 1983) (dicta); In re Aircrash in Bali, Indonesia on Apr. 22, 1974, 684 F.2d 1301, 1311 & n.8 (9th Cir. 1982) (dicta), cert. denied sub nom., 493 U.S. 917 (1989); Johnson v. American Airlines, Inc., 834 F.2d 721, 723 (9th Cir. 1987) (assuming without discussion that state law claims could be maintained); In re Korean Air Lines Disaster of Sept. 1, 1983, 932 F.2d 1475, 1491-92 (D.C. Cir.) (Mikva, J., dissenting), cert. denied sub nom., 112 S. Ct. 616 (1991). Contra In re Air Disaster at Lockerbie, Scotland, 928 F.2d 1267, 1275 (2d Cir.) (nonexclusivity would frustrate goals of uniformity and certainty), cert. denied sub nom., 112 S. Ct. 331 (1991); Boehringer-Mannheim Diagnostics, Inc. v. Pan Amer. World Airways, Inc., 737 F.2d 456 (5th Cir. 1984), cert. denied and appeal dismissed, 469 U.S. 1186 (1985) (same); Velasquez v. Aerovias Nacionales de Colombia, S.A., 747 F. Supp. 670, 675-77 (S.D. Fla. 1990) (same).
The official and governing text of the treaty, however, is in French, and it is that text which "must guide our analysis." Eastern Airlines, Inc. v. Floyd, 113 L. Ed. 2d 569, 111 S. Ct. 1489, 1493 (1991). In French, Article 24 states that actions "ne peut etre exercee que dans les conditions et limites prevues par la presente Convention." Warsaw Convention, supra, art. 24, 49 Stat. at 3006. "Conditions" has a number of meanings in French, including "the fundamental basis," e.g., Larousse de Pouche 117 (1990), and if "basis" or "terms" are more accurate translations, then Article 24 means that actions "however pleaded" will be considered to have been brought on the basis of the Convention -- i.e., that the Warsaw Convention's cause of action is exclusive. See In re Air Disaster at Lockerbie, Scotland, 928 F.2d at 1282; Benjamins v. British European Airways, 572 F.2d 913, 918 (2d Cir. 1978), cert. denied, 439 U.S. 1114, 59 L. Ed. 2d 72, 99 S. Ct. 1016 (1979).
Because Article 24's authentic text is ambiguous, the court may properly turn to its drafting history for clarification. As will be seen, the Convention's legislative history makes it clear that the drafters expected the Convention's cause of action to preempt all other bases for damages arising from delay, lost or damaged goods, personal injury, and death.
C. The Drafting History of the Warsaw Convention
1. The International Technical Committee of Aerial Legal Experts
The Warsaw Convention had its genesis in a proposed convention on the liability of air carriers, which was circulated by the French government in anticipation of the 1925 International Conference on Private Air Law. It was hoped that an international convention limiting carriers' exposure to damages awards "would enable airlines to attract capital that might otherwise be scared away by the fear of a single catastrophic accident." Andreas F. Lowenfeld & Allan I. Mendelsohn, The United States and the Warsaw Convention, 80 Harv. L. Rev. 497, 499 (1967); accord. Eastern Airlines, Inc. v. Floyd, 113 L. Ed. 2d 569, 111 S. Ct. 1489, 1499 (1991).
Participants at the 1925 Conference modified the proposed convention and authorized the creation of the International Technical Committee of Aerial Legal Experts ("Citeja"). At its first official session, Citeja focused primarily on ministerial matters, although members also began work on a draft convention governing aerial bills of lading. At the Second Session, Citeja voted to combine the proposed convention on carrier liability with the one on aerial bills of lading, and the combined draft was submitted to the Third Session, held in Madrid from May 24-29, 1928. That draft provided, in relevant part:
The carrier shall be liable for damage during ...