Benjamins v. British European Airways , 572 F.2d 913 ( 1978 )

LUMBARD, Circuit Judge:

This appeal, arising out of the death of Hilde Benjamins in the air crash disaster at Staines, England, on June 18, 1972, once again presents us with the much-discussed question whether the Warsaw Convention¹ creates a cause of action. The District Court for the Eastern District dismissed the complaint herein, believing itself bound by our prior decisions² to answer that question in the negative. We reverse.

I

On June 18, 1972, a Trident 1 Jet Aircraft — designed and manufactured by Hawker Siddeley Aviation, Ltd. [“HSA”], and owned and operated by British European Airways [“BEA”] — took off for Brussels from London’s Heathrow Airport. Soon thereafter, the plane stalled and crashed into a field, killing all 112 passengers, including Hilde Benjamins. Hilde Benjamins was survived by her husband Abraham; both were Dutch citizens permanently residing in California. BEA and HSA are British corporations with their principal places of business in the United Kingdom. The ticket on which Hilde Benjamins was travelling had been purchased in Los Ange-les, and clearly provided “international transportation” within the meaning of Article 1 of the Convention. Therefore, since the United States and the United Kingdom are both High Contracting Parties, the Convention is applicable to this proceeding.

This suit for wrongful death and baggage loss was brought in April of 1974 in the Eastern District of New York by Abraham Benjamins, as representative of his widow’s estate, on behalf of himself and the children of the marriage. Benjamins’ action was consolidated with a number of others arising out of the same incident, and assigned to Judge Weinstein. In re Air Crash Disaster at Staines, England, MDL No. 147 (J.P. M.D.L.). The major allegations in the complaint invoked Articles 17 and 18 of the Convention. These read, in relevant part, as follows:

Article 17. 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. Article 18(1). The carrier shall be liable for damage sustained in the event of the destruction or loss of, or of damage to, any checked baggage or any goods, if the occurrence which caused the damage so sustained took place during the transportation by air.

Dismissed once for lack of subject matter jurisdiction — only diversity was originally alleged — the complaint was amended to invoke 28 U.S.C. §§ 1331 and 1350 as well.³ After both sides had submitted briefs, Judge Weinstein ruled that this suit did not “arise” under a treaty of the United States, as § 1331 requires; he relied on Second Circuit precedent indicating that the Convention does not create a cause of action, but only establishes conditions for a cause of action created by domestic law. This appeal followed.

II

The first question we address⁴ is whether any court in this country has jurisdiction in the “international or treaty sense.” Smith v. Canadian Pacific Airways, Ltd., 452 F.2d 798, 800 (2d Cir. 1971). Only then may we consider “the power of a particular United States court, under federal statutes and practice, to hear a Warsaw Convention case — jurisdiction in the domestic law sense.” Id.

Jurisdiction in the treaty sense is determined by Article 28(1) of the Convention, which provides that

[a]n action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the court of the domicile of the carrier or of his principal place of business, or where he has a place of business through which the contract has been made, or before the court at the place of destination.

The third alternative of Article 28(1) is satisfied in this case: the ticket which constituted the contract of carriage was purchased in Los Angeles, through BEA. The fourth alternative appears also to fit, as decedent’s round-trip ticket provided for an ultimate destination in the United States.

Nonetheless, courts in the United States, and particularly the federal courts, are not the only possible forum for Abraham Benjamins. The courts of England are open to his suit — permitted by the first and second alternatives of Article 28(1) — as are the state courts of California.⁵ Plaintiff’s burden is not met by a showing that Article 28(1) permits some court of this country to hear his complaint; he must further show that some jurisdictional statute permits a federal court to do so.

Ill

The two bases for federal jurisdiction pleaded in Benjamins’ amended complaint are the Alien Tort Claims Act, 28 U.S.C. § 1350,⁶ and a general federal question “arising under” a treaty.

The Alien Tort Claims Act does not provide a basis for jurisdiction over this action. Without having to discuss the question of whether the wrongful death action against a carrier is essentially one in tort or in contract, we are satisfied that Benjamins’ complaint alleges a violation of neither the law of nations nor any treaty of the United States.

The Convention itself does not seek to outlaw accidents, crashes and other events causing death, injury or property loss. Rather, it sets forth the terms under which victims of such events may recover their damages. Airlines do not “violate” the Convention when they crash — even if their negligence was “wilful” — but only when they fail to compensate victims who are adjudged to be appropriate recipients of damages. The fact that a claimant must bring an action to recover does not constitute a violation by the carrier of its obligations.

Nor do the acts alleged violate the law of nations under the standards we set in IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975) : “a violation ... of those standards, rules or customs (a) affecting the relationship between states or between an individual and a foreign state, and (b) used by those states for their common good and/or in dealings inter se.” See Dreyfus v. Von Finck, 534 F.2d 24, 30-31 (2d Cir. 1976) . This law does not include a prohibition of air crashes.

IV

Accordingly, we must determine whether any of the causes of action pleaded by Benjamins “arise under” the Warsaw Convention. It is true that in the past we have said that the Warsaw Convention does not create a cause of action. We believe, however, that a re-examination of the question requires a different answer.

A

At the time the United States adhered to the Convention, it seemed obvious to all that the Convention created causes of action for wrongful death or personal injury (Article 17), and for damage to baggage (Article 18). One court went so far as to say, “If the Convention did not create a cause of action in Art. 17, it is difficult to understand just what Art. 17 did do.” Salamon v. Koninklijke Luchtvaart Maatschappij, N.V., 107 N.Y.S.2d 768, 773 (Sup. Ct.1951), aff’d mem., 281 App.Div. 965, 120 N.Y.S.2d 917 (1st Dept. 1953).⁷

The view that the Convention does not create a cause of action is, in large part, attributable to two cases we decided in the 1950s, Komlos v. Compagnie Nationale Air France, 209 F.2d 436 (2d Cir. 1953), rev’g on other grounds, 111 F.Supp. 393 (S.D.N.Y. 1952), cert. denied, 348 U.S. 820, 75 S.Ct. 31, 99 L.Ed. 646 (1954), and Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir.), cert. denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957):

The Second Circuit had spoken twice, the Supreme Court had denied certiorari, and in all subsequent American Warsaw cases it was either assumed or decided that the claim must be founded on some law other than the Convention itself.

Lowenfeld & Mendelsohn, The United States and the Warsaw Convention, 80 Harv.L.Rev. 497, 519 (1967).

The analysis on which this structure of holding rests is to be found in Judge Lei-bell’s opinion for the district court in Kom-los. In determining whether a cause of action had been assigned to an insurer or remained the property of an estate, Judge Leibell held that the action envisioned by Article 17 was one created by domestic law, except in cases where the forum provided no analogous action. Ill F.Supp. at 401-02.

Judge Leibell relied heavily on a letter sent by Secretary of State Cordell Hull to President Roosevelt on March 31, 1934, recommending adherence to the Convention. In the course of a lengthy discussion of the benefits of adherence, Hull wrote:

The effect of article 17 (ch. Ill) of the Convention is to create a presumption of liability against the aerial carrier on the mere happening of an accident occasioning injury or death of a passenger subject to certain defenses allowed under the Convention to the aerial carrier.

[1934] U.S.Av.Rep. 240, 243. This was seen by Judge Leibell as clear evidence that the Convention created only presumptions, not new causes of action.

In reversing Judge Leibell on another issue, we did not refer to the portion of his opinion discussed above, or, indeed, even mention the Warsaw Convention. 209 F.2d at 438-40. Nonetheless, in Noel, we followed our opinion in Komios, which, we said, had “impliedly agreed” with Judge Leibell. 247 F.2d at 679. Though most of our opinion in Noel was devoted to disapproving Judge Leibell’s suggestion that Article 17 might create a cause of action for wrongful death where domestic law did not, it is apparent that — however founded— Noel, as the law of this circuit, stands for the proposition that the Convention does not create a cause of action. See, e. g., Husserl v. Swiss Air Transport Co., 388 F.Supp. 1238, 1251-52 (S.D.N.Y.1975).

Recently, an inconsistency has developed between this rule and another line of Warsaw cases we have decided. For example, in Reed v. Wiser, 555 F.2d 1079 (2d Cir.), cert. denied, 434 U.S. 922, 98 S.Ct. 399, 54 L.Ed.2d 279 (1977), we indicated — without addressing the question in the instant case — that “the Convention was intended to act as an international uniform law,” id. at 1083, and that the substantive law of the Convention was binding on the forum, id. at 1092. The time has come to examine the question whether our view of the Convention as an internationally binding body of uniform air law permits us any longer to deny that a cause of action may be founded on the Convention itself, rather than on any domestic law.

B

1. The minutes and documents of the meetings, held in 1925 and 1929, which led to the adoption of the Convention do not specifically indicate whether the parties contemplated that an action for damages under the Convention would arise under the terms of the treaty or those of domestic law.⁸ What is made quite clear is the extent to which the delegates were concerned with creating a uniform law to govern air crashes, with absolutely no reference to any national law (except for the questions of standing to sue for wrongful death, effects of contributory negligence and procedural matters; see Articles 21, 24(2), 28(2)).

The delegates were concerned lest major air crash cases be brought before courts of nations whose courts were not (according to current Western standards) well organized, nor whose substantive law (according to the same standards) progressive. To avoid the “prospect of a junglelike chaos,” Reed v. Wiser, supra, 555 F.2d at 1092, the Convention laid down rules that were to be universally applicable. While it is not literally inconsistent with this universal applicability to insist that a would-be plaintiff first find an appropriate cause of action in the domestic law of a signatory authorized by Article 28 to hear his claim, it is inconsistent with its spirit.⁹ This inconsistency is an argument against the rule of Noel and Komlos, for the Convention is to be so construed as to further its purposes to the greatest extent possible, even if that entails rejecting a literal reading. Eck v. United Arab Airlines, Inc., 360 F.2d 804, 812 (2d Cir. 1966).

2. Other articles of the Convention throw some light on the question whether Articles 17 and 18 create causes of action. Article 30(3) provides that in the case of transportation by several carriers constituting one undivided transportation,

[a]s regards baggage or goods, the passenger or consignor shall have a right of action against the first carrier, and the passenger or consignee who is entitled to delivery shall have a right of action against the last carrier, and further, each may take action against the carrier who performed the transportation during which the destruction, loss, damage, or delay took place. .

The most reasonable interpretation of this section is that Articles 18 and 30(3) create a cause of action against the appropriate carrier when more than one carrier is involved. See Seth v. British Overseas Airways Corp., 329 F.2d 302, 305 (1st Cir.), cert. denied, 379 U.S. 858, 85 S.Ct. 114, 13 L.Ed.2d 61 (1964): “Thus the Convention not only imposes liability on an air carrier for the loss of checked baggage but also gives a passenger whose baggage is lost a right of action to enforce that liability. Seth’s action, therefore, seems clearly to be one arising under a treaty of the United States.” There is no reason to believe that the Convention’s effect is any different when only one carrier is involved.

Article 24 has been cited by proponents of both views of the Convention. In the French version — the only official version— the Article reads:

(1) Dans les cas prévus aux articles 18 et 19 toute action en responsabilité, á quelque titre que ce soit, ne peut étre exercée que dans les conditions et limites prévues par la présente Convention.

(2) Dans les cas prévus á l’article 17, s’ap-pliquent également les dispositions de l’alinéa précédent .

The unofficial translation reads:

(1) In the cases covered by articles 18 and 19 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 the provisions of the preceding paragraph shall also apply. .

The crucial phrases, of course, are “however founded” (“a quelque titre que ce soit”), and “conditions” (“conditions”). There is no internal evidence to indicate whether “however founded” was intended to refer to a number of possible domestic law sources or to a number of possible factual bases for the envisioned action.

As to “conditions,” that term in English does imply that the source of the action must be sought elsewhere than the Convention, which supplies only conditions and limits. Nonetheless, there is some evidence for the view that the French has not been so translated here as to provide the best interpretation of the delegates’ meaning, and that “basis” or “terms” would be a closer translation in this context of “conditions.” Calkins, supra, 26 J. Air L. & Comm, at 225-26. The arguments as to Article 24 are not conclusive either way.

3. More compelling is the evidence of how other signatories of the Convention have interpreted its provisions. The clearest picture is found in other common-law jurisdictions. In the statute enacting the original 1929 Convention in the United Kingdom, it was provided that

[a]ny liability imposed by Article seventeen of the said [Warsaw Convention] on a carrier in respect of the death of a passenger shall be in substitution for any liability of the carrier in respect of the death of that passenger either under any statute or at common law . ...

Carriage by Air Act, 1932, 22 & 23 Geo. 5, c. 36, § 1(4). When the Convention was reenacted as amended at the Hague in 1955, Carriage by Air Act, 1962, 9 & 10 Eliz. 2, c. 27, this language was omitted, but there is no indication that any change of substantive law was intended. No case law since 1962 has demonstrated that the source of carrier liability lies anywhere but in the Convention. See also Carriage by Air Act, 1939, 3 Geo. 6, c. 12 (Canada).

V

The fact that a proposition of law has been accepted for some twenty years is evidently a sign that circumspection is needed in seeking to overturn that proposition. We recognize that our holdings in Komlos and Noel have become the rule not of this circuit alone, but of others as well. See, e. g., Maugnie v. Compagnie Nationale Air France, 549 F.2d 1256, 1258 (9th Cir.), cert. denied, 431 U.S. 974, 97 S.Ct. 2939, 53 L.Ed.2d 1072 (1977). Nonetheless, we are convinced that — in light of both the paucity of analysis that accompanied the creation of the rule and the strong arguments in favor of the opposite rule — the Komlos/Noel rule ought no longer to be followed.

We do not believe that the passing remark of Secretary Hull in a lengthy letter was intended to state the total of what Article 17 might provide; we do not see what there was about our decision in Kom-los that constituted implicit agreement with Judge Leibell, and compelled the result in Noel; we do not find technical and disputable interpretations of the language of other articles of the Convention conclusive in determining this important question of policy.

We do, on the other hand, believe that the desirability of uniformity in international air law can best be recognized by holding that the Convention, otherwise universally applicable, is also the universal source of a right of action. We do see that uniformity of development can better be achieved by making federal as well as state courts accessible to Convention litigation. We do find the opinions of our sister signatories to be entitled to considerable weight.

One factor which makes federal jurisdiction peculiarly appropriate in large air crash cases was not present at. the time Komlos and Noel were decided. Section 1407 of 28 U.S.C., enacted by Pub.L.No.90-296, 90th Cong., 2d Sess., 82 Stat. 109 (April 29,1968), created the Judicial Panel on Mul-tidistrict Litigation, and authorized the creation of the procedures found in the Manual for Complex Litigation. These procedures, such as consolidation and assignment to one expert judge, can — by reducing expenses and expediting dispositions — benefit all parties to air disaster actions, in which the plaintiff/victims may come from many different parts of the country. Obviously, these procedures are unavailable among the courts of the several states.

Finally, we do not anticipate any large increase in the volume of federal litigation as a result of our holding. Most cases will fall under 28 U.S.C. § 1332, as they do today; only when plaintiffs and defendants are all aliens, but the United States is a nation with treaty jurisdiction, will it be necessary to invoke 28 U.S.C. § 1331.

VI

Accordingly, we reverse Judge Wein-stein’s order of dismissal. We leave it to his discretion to determine, in a manner consistent with our opinion, which of Benja-mins’ causes of action he may decide and which, if any, he may not; in particular, we leave to him the question whether to take-pendent jurisdiction over the claims against HSA.

Reversed and remanded for further proceedings consistent with our opinion.

1 . Convention for the Unification of Certain Rules Relating to International Transportation by Air, 49 Stat. 3000, T.S. No. 876 (concluded Oct. 12, 1929; adhered to by United States June 27, 1934) [hereinafter referred to as “Convention”; “Article(s) ......” means Article(s) ......of the Convention].

2 . Judge Weinstein cited Husserl v. Swiss Air Transport Co., 485 F.2d 1240 (2d Cir. 1973), aff’g 351 F.Supp. 702 (S.D.N.Y.1972); Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir.), cert. denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957); and Komlos v. Compagnie Nationale Air France, 111 F.Supp. 393 (S.D.N. Y.1952), rev’d on other grounds, 209 F.2d 436 (2d Cir. 1953), cert. denied, 348 U.S. 820, 75 S.Ct. 31, 99 L.Ed. 646 (1954). He indicated, however, that he thought the matter not free from doubt, and commended the question to our careful attention.

3 . Jurisdiction over HSA is alleged under principles of pendent jurisdiction.

4 . Personal jurisdiction is not an issue in this case, as each defendant has submitted to the in personam jurisdiction of the court.

5 . Smith v. Canadian Pacific Airways, Ltd., supra, indicates that venue is no concern of Article 28(1), 452 F.2d at 800-01. It answers only the question “whether suit may be brought at all in the courts of the United States,” whether state or federal and regardless of location. Id. at 800 n. 3.

6 . The District Courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

7 . But see Wyman v. Pan American Airways, 181 Misc. 963, 43 N.Y.S.2d 420 (Sup.Ct.1943), aff’d, 267 App.Div. 947, 48 N.Y.S.2d 459 (1st Dept.), aff'd, 293 N.Y. 878, 59 N.E.2d 785, cert. denied, 324 U.S. 882, 65 S.Ct. 1029, 89 L.Ed. 1432 (1944).

8 . Some commentators, at least, have attributed this to its being taken for granted that the Convention itself supplied the cause of action. E. g., Lowenfeld & Mendelsohn, supra, 80 Harv. L.Rev. at 517. A stronger statement comes from the Chairman of the United States Delegation to the Hague Conference to Amend the Warsaw Convention, G. Nathan Calkins:

[T]he author is convinced that the draftsmen of the Convention intended to create a right-of-action based on the contract of carriage; that the draftsmen did in fact carry this intention out in the Convention as signed; that it is self-executing; and therefore the supreme law of the land today.

Calkins, The Cause of Action Under the Warsaw Convention, 26 J. Air L. & Comm. 217, 218 (1959).

9 . We note that, after Noel, not even the total lack of an appropriate cause of action at domestic law would permit an action to be founded on the Convention itself.