The puzzle of defining "bodily injury" under the Warsaw Convention: laxity of courts in requiring an objective, palpable bodily injury will lead to a flood of insignificant claims for hurt feelings.

• Author: Holland, Michael J.

IN ACTIONS involving international transportation by aircraft, the rights of the parties are governed exclusively by a treaty known as the Warsaw Convention, (1) which was promulgated in 1929 and ratified by the United States Senate in 1934. At present, more than 120 nations are signatories to the convention.

THE CONVENTION

Article 1(1) of the convention provides that it applies "to all international transportation of persons, baggage, or goods performed by aircraft for hire." The phrase "international transportation" is defined in Article 1(2) of the convention as "any transportation in which, according to the contract made by the parties, the place of departure and the place of destination, whether or not there be a break in the transportation or transshipment, are situated either within the territories of two High Contracting Parties, or within the territory of a single High Contracting Party, if there is an agreed stopping place within a territory subject to the sovereignty, suzerainty, mandate or authority of another power, even though that power is not a party to this convention."

As a treaty of the United States, the Warsaw Convention supersedes state law and policy and is the supreme law of the land. (2)

The cause of action for personal injury or death created by the Warsaw Convention is set forth in Article 17, which provides:

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 17 provides the exclusive cause of action for bodily injury and wrongful death caused by an accident "on board the aircraft or in the course of any of the operations of embarking or disembarking." It is the only remedy for injury during international transportation, and in the context of American jurisprudence it completely pre-empts state law claims. (3)

If a plaintiff can prove both an "accident" and a "bodily injury" resulting from the accident, that plaintiff may recover pecuniary damages. Punitive damages are not permitted in a case governed by the convention. (4)

What constitutes an "accident" under Article 17 was addressed by the U.S. Supreme Court in Air France v. Saks (5) and its progeny. This article focuses on a narrower topic: If the plaintiff has sustained an "accident," what is the extent of "bodily injury" required to be proved to allow recovery under the Warsaw Convention?

WHAT IS "BODILY INJURY"?

1. Floyd

   The U.S. Supreme Court held in 1991 in Eastern Airlines Inc. v. Floyd, (6) that a passenger cannot recover for "mental or psychic injuries unaccompanied by physical injuries or physical manifestation of injury." Floyd was an action brought by a group of passengers traveling on an international flight aboard Eastern Airlines from Miami to the Bahamas. The aircraft's engines failed in flight, and the passengers were advised to prepare to ditch into the Atlantic Ocean. Fortunately, the crew was able to restart the engines, and the plane was landed uneventfully back in Miami. The passengers sued Eastern, claiming damages for mental distress arising from the incident. Eastern conceded that the incident amounted to an "accident" under Article 17, but it argued that "bodily injury" was also a prerequisite to liability under Article 17.

   After reviewing the drafting history of the Warsaw Convention, the Court agreed with Eastern and held "that Article 17 does not allow recovery for purely mental injuries," stating, "We conclude that an air carrier cannot be held liable under Article 17 when an accident has not caused a passenger to suffer death, physical injury, or physical manifestation of injury."

2. Post-Floyd

   Since Floyd, numerous cases have held that where a passenger alleges mental injures such as dizziness, anxiety, sleeplessness, irritability and loss of confidence, those claimed injuries are insufficient to meet the "bodily injury" requirement of Article 17 necessary to impose liability on the airline. (7)

   Several post-Floyd decisions have articulated the meaning of the term "bodily injury" in the context of the Warsaw Convention and the type of "bodily injury" that must be sustained by a passenger for recovery of emotional injuries arising from the bodily injury. In Jack v. Trans World Airlines, (8) the plaintiffs sought to recover damages for injuries allegedly sustained during the evacuation of a TWA flight that crashed on take-off. There was no dispute that the crash was an "accident," and many passengers sustained minor physical injuries. Approximately half of the plaintiffs claimed only that they suffered solely emotional distress from the accident, while the other half claimed to have suffered emotional distress plus minor physical injuries.

   The U.S. District Court for the Northern District of California discerned four possible approaches regarding emotional distress in a Warsaw Convention case:

   * No recovery allowed for emotional distress.

   * Recovery allowed for all distress, as long as a bodily injury occurs.

   * Emotional distress allowed as damages for bodily injury, but distress must include distress about the accident.

   * Only emotional distress flowing from the bodily injury is recoverable.

   Adopting the fourth approach, the Jack Court sought to prevent great inequities among the passengers subject to the Warsaw Convention, and it set out the following role:

   The court adopts the fourth approach. Plaintiffs with impact injuries may recover for their impact injuries and the emotional distress flowing only from the physical injuries. They may also recover for the physical manifestations of their emotional distress. Plaintiffs with physical manifestations may recover damages for the manifestations and any distress following from the manifestations, but may not recover damages for the emotional distress that led to the manifestations. In both instances, the emotional distress recoverable is limited to the distress about the physical impact or manifestation, i.e., the bodily injury. Recovery is not allowed for the distress about the accident itself. (9) Regardless of which approach is taken, a plaintiff must prove a bodily injury in order to recover any damages under the convention. When no bodily injury is proved, no damages are recoverable.

   The Jack approach has been approved and followed by other courts. In Longo v. Air France, (10) the Longos, a honeymooning couple, sustained minor injuries during an evacuation and while using emergency slides after their aircraft slid off the runway into the ocean. The wife bruised her thigh and stepped on a sea urchin, while her husband bruised his knee. Their suit for damages included their alleged "fear of flying." They claimed that they could recover for all their mental distress as long as some physical injury (that is, their bruises) had occurred.

   Rejecting that claim, the U.S. District Court for the Southern District of New York stated:

   Although Floyd left open the question of whether emotional distress is compensable under Article 17 if...