* [Petition for a writ of certiorari to the United States Court of Appeals for the Second Circuit was filed with the U.S. Supreme Court on September 2, 1977. On October 31, 1977, the U.S. Supreme Court denied review (No. 77-339)..

1 Convention for the Unification of Certain Rule3 Relating to International Transportation by Air, opened for signature Oct. 12, 1929, 49 Stat 3000, T.S. No. 876, 137 L.N.T.S. 11 (adherence of United States ’ proclaimed Oct. 29, 1934).

2 Agreement Relating to Liability Limitations of the Warsaw Convention and the Hague Protocol, Agreement CAB 1S990, approved by order E-286S0, May 13, 19C6 (docket 17325).

3 See Smith v. O'Donnell, 215 Cal. 714, 12 P.2d 933 (1932); Seaman v. Curtiss Flying Serv., Inc., 231 App. Div. 867, 247 N.T.S. 251 (1930); Lowenfeld, Aviation Law $4.32 (1972).

4 See, e.g., Civil Coda art. 1384, para. 1 (Fr.); Judgment of Nov. 12, 1952, Cour d'appel, Paris, [1953] J.C.P. II 7650; Judgment of Oct. 11, 1954, Cour d'appel, Bordeaux, []955] D. Jr. 32; Judgment of April 7, 1956, Cour d'appel, Paris, [1956] JCP II 9453.

5 In order to ensure uniformity of interpretation, which was one of the paramount objectives of the Convention, the test was “drawn up in French in a single copy.,v Article 36. See Block, supra at 330; Day v. Trans World Airlines, Inc., 528 F.2d 31, 33 n.7 (2d Cir. 1075); Eck v. United Arab Airlines, Inc., 360 F.2d 804, 814 (2d Cir. 1966).

6 The English version that was used by the Senate was originally published in a Treaty Information Bulletin of the Department of State in March 1934. 78 Cong. Rec. #115 77-82 (1934).

7 As Judge Wisdom stated in Block, 386 F.2d at 331, “much of the difference in views among the jurists on Citeja and the delegates io Warsaw is attributable to the conceptual differences in the laws of Prance, Italy, Germany, and the Scandinavian countries, to say nothing of the difference between the civil law and the common law.” He added.

“The binding meaning of the terms is the French legal meaning. The principle of the primacy of the Trench legal system thus means a harmonizing construction of the Convention.’ This principle should not be carried to extremes, but ‘[u]niformity may be maintained without many futile disputes as to whether, why, and when resort to the teachings in Paris should be made.’ The necessity for maintaining uniformity, even when the Convention is applied in a country, such as the United States, having a doctrinal basis for its legal system different from civilian systems, compels a broad construction of the Convention’ Id at 330.

8 In recommending such an amendment, the Legal Committee of the International Civil Aviation Organization referred to “the possibility that efforts might be made by claimants to obtain from the carrier higher damages than those specified in the Convention by filing actions against the servant or agent of the carrier, upon the basis that no provision existed in the Convention limiting the liability of the servant or agent and upon the assumption that the carrier would indemnify such servants or agents“.

Report on Revision of the Warsaw Convention, 2 International Conference on Private Air Law, The Hague, Sept. 1955, Documents 99 (ICAO Doc. 7686-LC/140 1956) (emphasis added). We read thi3 statement as referring to continuing uncertainty as to the proper scope of the Convention. As the Swiss delegation stated: “Mr. Stalder (Switzerland) stated that the Swiss Delegation saw no necessity for amending the Convention by an Article 25A. However, in order to assist the court which would have to pass inderment on cases now carefully regulated by this article, he was prepared to accept it.“

Hague Minutes at 216.

Article 25A provides:

”1. If an action is brought against a servant or agent of the carrier arising out of damage to which this Convention relates, snch servant or agent, if he proves that he acted within the scope of his employment, shall be entitled to avail himself of the limits of liability which that carrier himself is entitled to invoke under Article 22.

“2. The aggregate of the amounts recoverable from the carrier, his servants and agents, in that case, shall not exceed the said limits.

“3. The provisions of paragraphs 1 and 2 of this article shall not apply if it is proved that the damage resulted from an act or omission of the servant or agent done with intent to cause damage or

10 A detailed history of the Hague ratification controversy appears in Lowenfeld, The United States and the Warsaw Convention, 80 Harv. L. Rev. 497 (1967). Mr. Lowenfeld was Chairman of the United States delegation at tho Montreal Conference.

11 To the extent that the decided cases indicate anything, they would tend to support, on balance, the conclusion that employees should be covered. In Wanderer v. Sabena, 1949 U.S. Aviation Rep. 2-5 (Sup. Ct. K.Y. Co. 1919), the court held that agents were protected by the liability limits. Following Wanderer, the court in Chutter v. KLM,132 agents. In 1957, the court in Pierre v. Eastern Airlines, Inc., 152 F. Supp. 486 (D.N.J. 1957), apparently unaware of Wanderer and Chutter and relying on the failure of this country to ratify the Hague Protocol, held that the defendant pilot was not protected even though his codefendant and employer Eastern Airlines was. The ultimate disposition of this case was unclear. (Appellants assert that the case was not appealed and was settled for a nominal amount. Amicus asserts that the nominal sum was greater than that permitted by the Convention.) In 1961, a Canadian trial court ruled that the Carriage by Air Act, which embodied the Warsaw Convention in Canada, did not limit the liability of the estates of employee-pilots. Stratton v. Trans Canada Airlines, 27 D.L.E.2d 670 (B.C. Sup. Ct. 1961). The Court of Appeals held that the flight was not “international” for purposes of the Convention, so that the limitations of the Convention did not apply, and that in any event any cause of action agains; the pilots did not survive their deaths, and therefore concluded that “it is not necessary to coneider whether the pilots would have been entitled to its benefits had it been applicable to the flight in question.” Stratton v. Trans Canada Airlines, 32 D.L.R.2d 736, 749 (B.C. Ct. App. 1962).

The parties and amicus curiae cite in addition Scarf v. Trans Worhl Airlines, Inc., 4 Av. L. Rep. (CCH) 17, S28 (S.D.N.Y. 1955); Hoffman v. British Overseas Airways Corp., 9 Av. L. Rep. (CCH) 17,180 (N.Y. Sup. Ct. 1964) ; and Judgment of Dec. 3, 1969, Cass. Crim., France [1970] D.S. Jur. 81. In Scarf, no allegations of agency were made, and the court distinguished Chutter on that basis. In Hoffman, the court refused to dismiss for improper venue a suit against an airport portable stairway company where the company refused to concede jurisdiction over the claim in any other court, distinguishing Chutter as not dealing with venue problems. Why amicus curiae cites the French case, Judgment of Dec. 3, 1969, in support of its position is something of a mystery, since France ratified the Hague Protocol prior to that decision.

In any event, the case involved the jurisdictional peculiarities of the French action civile, in which criminal and civil liabilities are assessed simultaneously against an alleged wrongdoer—in this case the pilot. The court upheld a motion to dismiss the adjoined suit against the employer carrier for lack of venue under the Warsaw Convention. No motion was made to dismiss the civil half of the action civile, and no consideration was given by the court to problems that might be involved in doing so.

12 In 1971 the Guatemala City Protocol instituted a system of absolute carrier liability regardless of fault, and raised the liability limits to about $100,000 at the then-current exchange rate of $35 per ounce of gold. (Under the Protocol, calculation of the limit 13 to be made “according to the gold value of [the dollar] at the date of the judgment.“ See Article VIII). As of March 22, 1977, the price of gold was $152 per ounce, which, according to our calculations, implies a liability limit of $480,147.

14 See note 4, supra. Thus the estate of the pilot of the Douglas DC-10 that crashed shortly after takeoff from Pari3, France, on March 3, 1974, see In re Paris Air Crash of March S, 1974, 399 F. Supp. 732 (CD. Cal. 1975), would” bo absolutely liable for the death of all 333 passengers on board, despite the pilot's lack of negligence or fault.

15 Here, plaintiffs demand a total of $S,600,000 on behalf of 9 out of the 79 passengers on board. As the amicus brief notes, the case on appeal is the test case for the remainder of tho suits consolidated with it below.

16 The preface to the Convention states that the parties “Having recognized the advantage of regulating in a uniform manner the conditions on international transportation by air in respect of the documents used for such transportation and of the liability of the carrier“ have entered into the Convention thereafter set forth. See also Grein V. Imperial Airways, Ltd., [1937] 1 K.B. 50, 74-75; Itosman v. Trans World Airlines, Inc., 34 N.Y.2d 3S5, 395-96 (1974) ; W.E. Astle, Air Carriers’ Cargo Liabilities and Immunities 20 (London 195S) ; Warsaw Minutes at 136 (statement of the delegate from France).

17 See Letter of June 30, 1925, from M. Briand, Ministre des Affaires fitrangSres, reprinted in Conference Internationale de Droit Prive A6rien 1929 (Warsaw Proceedings) at 10. See also Avant-Projet de Convention Internationale sur la Eesponsabilite du Transportcur par A6ronefs, reprinted id. at 10-11.

18 The court stated.

“The decedents were from 24 countries, and at least 12 states of the United States wero represented among the suits filed—a total of 36 jurisdictions. According to information furnished voluntarily by THY, the human occupants of tho plane came from the following countries: Argentina, Australia, Belgium, Brazil, Canada, Cyprus, Denmark, England (United Kingdom), France, India, Northern Ireland (United Kingdom), Kepublic of Ireland, Italy, Japan, Morocco, New Zealand, North Korea, Pakistan, Senegal, South Viet Nam, Switzerland, Turkey, United States, and West Germany. (Claimants are from all of these countries plus Israel and Sweden.) So far, it presently appears to the Court that claimants are from the states of California, Indiana, Kansas, Maryland, New Jersey, New York, Pennsylvania, South Carolina, Texas, Utah, Virginia, and’ Washington. How many countries are Court uor his staff has bad time to tabulate, and accurate and complete information has not been supplied to the Court by the parties.

“The complexity of the problem of the choice of law applicable to damages is further illustrated by some facets of the distinctions in the conflicts rules of the 12 states listed above: Five of them use the “significant contacts’ (state-with-substantial-ties-to-a-transaction) approach, sometimes interchangeably with ‘governmentinterest' or ‘public-interest’ approach; six apply the ‘place-of-thewrong,“ i.e. accident, approach; and California specifically uses the governmental-interest’ approach….

“The measures of damages recoverable also varies: One state limits the amount to $50,000; another, to $75,000; four allow full recovery with varying limitations; one has full recovery plus pain and suffering and mental anguish; and five use ‘compensatory’ and, in some instance, “pecuniary.“

“No standard or rules for choice of law on damages (where there may be a conflict) of any of the foreign nations involved has been cited to the court by the parties, and none has been found on independent research, although the parties have set forth the elements of the measure of damages in death cases in some, but by no means all, of the countries involved.“

19 In addition, the district court argued that the Convention ought to be strictly construed because adherence by the United States was not “prompt,” “enthusiastic,” or “exuberant.” Under the same principle, presumably, a statute that barely passed Congress would be strictly construed, while a bill passed by a wide majority would deserve an expansive interpretation. “We cannot endorse any such principle. As the Supreme Court stated in Chicago, Burlington 4’ Quincy B.B. Co. v. McGuire, 219 U.S. 549, 569 (1911) (emphasis added).

“Whether the enactment is wise or unwise, whether it is based on sound economic theory, whether it is the best mean3 to achieve the desired result, whether, in short, the legislative discretion within its prescribed limits should be exercised in a particular manner, are matters for the judgment of the legislature, and the earnest conflict of serious opinion does not suffice to bring them within the range of judicial cognizance.’