reaches not only the state law
tort claims based on negligence, but also those state law claims based on
alleged wilful misconduct. Thus, plaintiffs' claims should be dismissed.
For the reasons that follow, the court concludes that the Warsaw
Convention preempts all of plaintiffs' state law claims, including those
based on wilful misconduct. Accordingly, the court will dismiss for lack
of subject matter jurisdiction plaintiffs' claims based on violations of
the Pennsylvania Unfair Trade Practices and Consumer Protection Law, and
on violations of the Mexican Civil Code. The court also will dismiss
plaintiffs' state law claims of misrepresentation, unjust enrichment,
intentional infliction of emotional distress, false imprisonment, and
negligence with leave to amend their complaint to state causes of
action, if appropriate, under the Warsaw Convention.
A. Applicable Law
The Warsaw Convention*fn2 applies to "all international transportation
of persons, baggage, or goods performed by any aircraft for hire." Note
following 49 U.S.C. § 40105. The Convention sets forth a
comprehensive scheme that defines the liability of international air
carriers for personal injuries, damage and loss of baggage and goods, and
damage caused by delay. Recognizing "the advantage of regulating in a
uniform manner the conditions of . . . the liability of the carrier,"
id., one of the Convention's overarching purposes is "to accommodate or
balance the interests of passengers seeking recovery for personal
injuries, and the interests of [international] air carriers seeking to
limit potential liability." El Al Israel Airlines, Inc. v. Tseng,
525 U.S. 155, 170 (1999).
The Supreme Court has concluded that, "[g]iven the Convention's
comprehensive scheme of liability rules and its textual emphasis on
uniformity, [the Court] would be hard put to conclude that the delegates
at Warsaw meant to subject air carriers to the distinct, nonuniform
liability rules of the individual signatory nations." Id. at 169.
Consequently, "recovery for a personal injury suffered `on board [an]
aircraft or in the course of any of the operations of embarking and
disembarking,' . . . if not allowed under the [Warsaw] Convention, is not
available at all." Id. at 161.
Article 17 of the Convention establishes carrier liability 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 took place on board the aircraft or in the course of any of
the operations of embarking and disembarking." Note following
49 U.S.C. § 40105. Under the 1966 modifications to the Convention
worked by the Montreal Interim Agreement, a private accord among
international air carriers with connecting points in the United
provision "subjects international carriers to strict
liability for Article 17 injuries sustained on flights connected with the
United States." Eastern Airlines, Inc. v. Floyd, 499 U.S. 530,
552 (1991); see also In re Air Disaster at
Lockerbie, Scotland, 928 F.2d 1267, 1286 (2d Cir. 1991) (overruled on
other grounds by Zicherman v. Korean Air Lines Co., Ltd., 516 U.S. 217
(1998), as recognized in Brink's Ltd. v. South African Airways,
93 F.3d 1022, 1029 (2d Cir. 1996) ("The framers . . .
saw Article 17 as a means of creating liability or at the very least
shifting the burden of proof to the carrier.").
While under the Warsaw Convention, strict liability for personal injury
is the rule, the impact of the rule is cushioned by correspondingly
limiting the damages that may be awarded to $75,000 per passenger.*fn4
The limitation on damages is not applicable, however, where damages are
caused by a carrier's "wilful misconduct." Note following
49 U.S.C. § 40105.
B. The Preemptive Effect of the Warsaw Convention
As a general rule, state law claims "are barred by the Warsaw
Convention, because the Convention provides the exclusive cause of action
for injuries suffered during international flights." Waters v. Port
Auth. of N.Y. and NJ, 158 F. Supp.2d 415, 422 (D.N.J. 2001) (citing
Tseng, 525 U.S. at 161). Accordingly, once a court determines that the
action is one for personal injury within the scope of the Warsaw
Convention, it must dismiss all state law claims as preempted, and allow
a plaintiff to proceed in the federal forum, and only on claims
cognizable under the Convention.
The plaintiffs claim that Article 25, as clarified by the Montreal
Protocol, informs that the Warsaw Convention as a whole does not apply to
common law claims of wilful misconduct, and that therefore, those claims
predicated on wilful misconduct are "expressly relegated" to state law.
Weiss v. American Airlines, Inc., 147 F. Supp.2d 950, 953 (N.D.Ill.
2001). The court disagrees.
First, the plain reading of Article 25 suggests a different result.
Article 25, in relevant part, states
The carrier shall not be entitled to avail himself of the provisions of
this convention which exclude or limit his liability, if the damage is
caused by his wilful misconduct or by such default on his part as, in
accordance with the law of the court to which the case is submitted, is
considered to be equivalent to wilful misconduct.
Note following 49 U.S.C. § 40105 (emphasis supplied). On its face,
this provision teaches that "[wilful] misconduct negates . . . the
monetary limitations contained in
Article 22 . . . [N]o authority
suggests that the basic liability terms . . . were to be displaced." In
re Korean Air Lines Disaster of Sept. 1, 1983, 932 F.2d 1475, 1488-89
(D.C. Cir. 1991).*fn5
Second, the idea that wilful misconduct claims are indeed within the
ambit of the Warsaw Convention is consistent with the jurisprudence of
the Supreme Court in this area. See Carey v. United Airlines,
255 F.3d 1044, 1048-50 (9th Cir. 2001) (discussing in detail Supreme
Court precedent and the purposes of the Warsaw Convention).
Specifically, in construing Article 17, the provision that sets forth the
general conditions that trigger Warsaw Convention protections, the
Supreme Court broadly defined "accident" as any "unexpected or unusual
event or happening that is external to the passenger." Air France v.
Saks, 470 U.S. 392, 405 (1985). At no time has the Supreme Court limited
the broad definition of the term "accident" only to events that involve
reckless or negligent conduct, or otherwise carved out wilful misconduct
from the scope of the Convention.
Third, the key purpose of the Warsaw Convention, set forth in its
preamble, is that of "achiev[ing] uniformity of rules governing claims
arising from international air transportation." El Al Israel Airlines,
Ltd. v. Tseng, 525 U.S. 155, 169 (1999) (quoting Floyd, 499 U.S. at 552
(1991)). In this context, any scenario that would force international air
carriers to face liability in two forums, namely a federal court for
negligence claims and a local court for wilful misconduct claims, would
undermine the Convention's stated goal of uniformity. See Carey, 255 F.3d
at 1049. Moreover, such an approach would "encourage artful pleading by
plaintiffs seeking to opt out of the Convention's liability scheme when
local law promise[s] recovery in excess of that prescribed by the
treaty." Tseng, 525 U.S. at 171.*fn6 Had the delegates intended the
wholesale relegation of wilful misconduct claims to state law, a radical
step that would seriously undermine the universality of the Convention,
it could be expected that they would have said so in broader and more
Fourth, Weiss misreads the extent to which the Montreal Protocol
amended Article 25.*fn7 The adoption of the Montreal
Protocol did not
bring about a sea change in practice by permitting claims for wilful
misconduct to be brought in a state forum, but merely "clarifie[d] what
[A]rticle 25 meant by `wilful misconduct.'" Bayer Corp. v. British
Airways, LLC, 210 F.3d 236, 238 (4th Cir. 2000). As the Second Circuit
Article 25 of the Warsaw Convention defers to the law of the forum
jurisdiction for a determination of what conduct constitutes "wilful
misconduct" by an air carrier. When a Warsaw Convention action is filed
in a United States district court and no federal statute governs, the law
of the United States for purposes of Article 25 is the law of the state
in which the district court sits.
Brink's Ltd. v. South African Airways, 93 F.3d 1022, 1030 (2d Cir.
1996). In other words, the language of Article 25 only prescribes that
whether the conduct alleged constitutes wilful misconduct is to be
determined by reference to local (state) law, Goldhirsch, supra note 3,
at 155, and not, as the Weiss court concluded, that wilful misconduct
claims are to be adjudicated outside the framework of the Warsaw
Convention and in a local forum.*fn8
C. Plaintiffs' Claims
Applying the aforesaid principles to this case, plaintiffs' claims of
wilful misconduct based on violations of the Pennsylvania Unfair Trade
Practices and Consumer Protection Law, and on violations of the Mexican
Civil Code will be dismissed for lack of subject matter jurisdiction. The
court will also dismiss plaintiffs' state law claims of
misrepresentation, unjust enrichment, intentional infliction of emotional
distress, false imprisonment, and negligence with leave to amend.
Because the state law claims are preempted does not mean, of course,
that plaintiffs may not recover for wilful misconduct under the Warsaw
Convention. Thus, to the extent that the Warsaw Convention recognizes
liability for the type of tortious conduct alleged by plaintiffs in their
complaint, leave to amend is granted to state such claims.*fn9 See Fed
For the foregoing reasons, the court will dismiss plaintiffs' claims
under the Pennsylvania Unfair Trade Practices and Consumer Protection
Law, and under the Mexican Civil Code for lack of subject
matter jurisdiction. The court also will dismiss plaintiffs' remaining
state law claims for misrepresentation, unjust enrichment, intentional
infliction of emotional distress, false imprisonment, and negligence, but
will grant plaintiffs leave to amend their complaint to state a cause of
action under the provisions of the Warsaw Convention.
An appropriate order follows.
AND NOW, this 19th day of November, 2002, upon consideration of
defendants' notice of removal (doc. no. 1), plaintiffs' motion to remand
to state court and memorandum of law in support of plaintiffs' motion to
remand to state court (doc. no. 5), plaintiffs' memorandum of law in
opposition to defendants' motion to dismiss (doc. no. 6), defendant
Allegro Airlines' motion to dismiss plaintiffs' complaint and motion to
strike plaintiffs' demand for attorneys' fees, costs and punitive damages
(doc. no. 7), defendants' opposition to plaintiffs' motion to remand to
state court (doc. no. 14), plaintiffs' memorandum of law in opposition to
motion to dismiss (doc. no. 15), and defendant Allegro's response to
plaintiffs' opposition to defendant's motion to dismiss complaint (doc.
no. 18), it is hereby ORDERED as follows:
1. Plaintiffs' motion to remand to state court (doc. no. 5) is
2. Defendant Allegro's motion to dismiss plaintiffs' complaint is
3. Pursuant to Federal Rule of Civil Procedure 15(a), plaintiffs are
granted leave to amend the complaint to state a cause of action under the
Warsaw Convention by November 29, 2002.
4. Plaintiffs' request for discovery and supplemental briefing is
A. Plaintiffs shall complete all discovery by December 17, 2002.
• Plaintiffs shall file a supplemental brief with supporting
affidavits or citations to deposition transcripts by January 2, 2003.
• Defendant Apple shall file a responding brief with supporting
affidavits or citations to deposition transcripts by January 17, 2003.
AND IT IS SO ORDERED.