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Despite recent changes to the Warsaw Convention governing airline liability, passengers cannot hold carriers liable for mental injuries that accompany, but are not caused by, bodily injuries, the U.S. Court of Appeals for the Second Circuit has ruled. Upholding a grant of partial summary judgment for American Airlines in the Eastern District, the court said that Maryanne and Gary Ehrlich cannot recover for their mental injuries following the events of May 8, 1999, when an American Eagle plane overshot the runway at John F. Kennedy International Airport and was stopped from plunging into the water by a “ground arrestor system.” The court, in Ehrlich v. American Airlines Inc., 02-9462, said that Article 17 of the convention, which outlines conditions under which international air carriers can be held liable for injuries, restricts recovery to “damage sustained in the event of . . . bodily injury.” The lower court had found there was no causal connection between the Ehrlichs’ physical injuries and their mental problems. During the abrupt arrest of the plane and subsequent evacuation on the edge of Thurston Bay, Gary Ehrlich hurt his knees and Maryanne Ehrlich suffered injuries to her neck, back, shoulder, hips and right knee. Both later claimed they suffered from fear of flying and had difficulty sleeping. Eastern District Judge Carol B. Amon ruled for American, finding that under the Warsaw Convention “a plaintiff may only recover for emotional damages caused by physical injuries.” Judge Amon also found that the Ehrlichs had not raised an issue of genuine fact “regarding a causal connection between their alleged bodily injuries and their mental suffering.” On appeal, the Ehrlichs argued that the liability landscape under the Warsaw Convention had changed with the U.S. Senate ratification of the so-called Montreal Convention on July 31, 2003, which occurred after Judge Amon’s opinion. The Ehrlichs contended that delegate comments at the Montreal Convention, which was held to “harmonize the hodgepodge of supplementary amendments and intercarrier agreements” that make up the Warsaw Convention system of liability, support the conclusion that Article 17 allows for the award of damages for mental injuries. But Second Circuit Judge Thomas J. Meskill said, “Despite its ratification and entry into force, we conclude that the Montreal Convention does not govern the appeal at bar and that we need not give the views expressed by various delegates at the Montreal Conference . . . dispositive weight.” While the incident at JFK occurred “several years” before the Senate’s ratification, he said, the views of the delegates are still relevant to interpreting Article 17. Nonetheless, Judge Meskill said, the history of both Article 17 supports the view that passengers can bring an action to recover for “mental injuries but only to the extent that they flow from bodily injuries,” and the delegate comments in Montreal do nothing to change that view. The Executive Branch weighed in with an amicus brief supporting this interpretation, Judge Meskill noted. Article 17 Origins He then returned to the origins of Article 17 and an analysis of the French phrases used in its final form. “Since a remedy for mental injuries was unknown to many, if not most, jurisdictions in 1929, the drafters of the Warsaw Convention most likely would have felt a need to make an unequivocal reference to that type of liability if they had intended to allow passengers to recover for such injuries,” Judge Meskill said. “In sum, the negotiating history of the Warsaw Convention demonstrates that the phrase ‘domage survenu en cas de . . . lesion corporelle’ should be read to impose a causation requirement.” The primary purpose of the convention was to limit liability, he added, and another goal of the convention was to avoid “anomalous and illogical consequences” from any interpretation that would result in treating similarly situated passengers differently based on “an arbitrary and insignificant difference in their experience.” Further corroboration for restricting recovery for mental injuries, Judge Meskill said, could also be found in the decisions of courts in other nations that signed the convention. And as for the Montreal Convention, he said, while delegates did discuss extending carrier liability to mental injuries, “their discussions did not lead to a general consensus on that subject; rather, they evidence a discordant chorus of voices.” Judges Roger J. Miner and Chester J. Straub joined in the opinion. Frank H. Granito Jr. and Jeanne M. O’Grady of Speiser, Krause, Nolan & Granito represented Gary and Maryanne Ehrlich. David S. Rutherford, Lewis R. Silverman and Sarah A. Hine of Rutherford & Christie represented American Airlines. Attorneys with the Department of Justice appeared for the United States as friend of the court.

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