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holding that treaty interpretation can be informed by parties' post-enactment conduct
Summary of this case from Olin Holdings Ltd. v. LibyaOpinion
No. 89-1598
Argued October 29, 1990 Decided April 17, 1991
After petitioner's plane narrowly avoided crashing during a flight between Miami and the Bahamas, respondent passengers filed separate complaints seeking damages solely for mental distress arising out of the incident. The District Court consolidated the proceedings and ruled that Article 17 of the Warsaw Convention, which sets forth conditions under which an international air carrier can be held liable for injuries to passengers, does not allow recovery for mental anguish alone. The Court of Appeals reversed, holding that the phrase "lesion corporelle" in the authentic French text of Article 17 encompasses purely emotional distress.
Held:
1. Article 17 does not allow recovery for purely mental injuries. Pp. 534-553.
(a) When interpreting a treaty, this Court begins with the treaty's text and the context in which the written words are used. Other general rules of construction may be brought to bear on difficult or ambiguous passages; and, since treaties are construed more liberally than private agreements, the Court may look beyond the written words to the treaty's history, the negotiations, and the practical construction adopted by the parties. Pp. 534-535.
(b) Neither the Warsaw Convention itself nor any of the applicable legal sources demonstrates that the relevant Article 17 phrase, "lesion corporelle," should be translated other than as "bodily injury" — a narrow meaning excluding purely mental injuries. Bilingual dictionaries suggest that that translation is proper, and any concerns that the dictionary definitions may be too general for purposes of treaty interpretation are partly allayed when, as here, the definitions accord with the main English translations of the Convention, including the text employed by the Senate when it ratified the Convention. Moreover, a review of relevant French legal materials reveals no legislation, judicial decisions, or scholarly writing indicating that, in 1929, the year the Convention was drafted, "lesion corporelle" had a meaning in French law encompassing psychic injuries. It is unlikely that the understanding of the term "lesion corporelle" as "bodily injury" that was apparently held by the Convention's contracting parties would have been displaced by a meaning abstracted from French damages law, which, at the relevant time, evidently allowed recovery for psychic injury, particularly when the psychic injury cause of action would not have been recognized in many other countries represented at the Convention. Nor is this conclusion altered by an examination of Article 17's structure, whereby "lesion corporelle" might plausibly be read to refer to a general class of injuries including internal injuries, in contrast with other language in the Article covering bodily ruptures. Although the official German translation of "lesion corporelle" adopted by Austria, Germany, and Switzerland used German terms whose closest English translation is apparently "infringement on the health," this Court is reluctant to place much weight on an English translation of a German translation of a French text, particularly in the absence of any German, Austrian, or Swiss cases adhering to the broad interpretation that the German delegate evidently espoused. Pp. 535-542.
(c) Translating "lesion corporelle" as "bodily injury" is consistent with the negotiating history of the Convention. It is reasonable to infer that the drafters of the language that ultimately became Article 17 rejected broader proposed language, which almost certainly would have permitted recovery for emotional distress, in order to limit the types of recoverable injuries. Moreover, a review of the documentary record for the Warsaw Conference confirms that neither the drafters nor the signatories specifically considered liability for psychic injury, apparently because many, if not most, countries did not recognize recovery for such injuries at the time. Thus, the drafters most likely would have felt compelled to make an unequivocal reference to purely mental injury if they had intended to allow such recovery, as did the signatories to the Berne Convention on International Rail. The narrower reading of "lesion corporelle" also is consistent with the primary purpose of the Warsaw Convention's contracting parties, who were more concerned with limiting the liability of air carriers in order to foster the growth of the fledgling commercial aviation industry than they were with providing full recovery to injured passengers. Pp. 542-546.
(d) On balance, the evidence of the post-1929 conduct and interpretations of the Warsaw Convention signatories supports the narrow translation of "lesion corporelle." Although a 1951 proposal to substitute "affection corporelle" for "lesion corporelle" was never implemented, the discussion and vote suggest that, in the view of the 20 signatories on the committee that adopted the proposal, "lesion corporelle" had a distinctly physical scope. Moreover, although the Hague Protocol of 1955, the Montreal Agreement of 1966, and the Guatemala City Protocol of 1971 all refer to "personal injury," rather than "bodily injury," none of these agreements supports the broad interpretation reached by the Court of Appeals. There is no evidence that any of them was intended to effect a substantive change in, or clarification of, the provisions of Article 17. The Hague Protocol refers to "personal injury" only in the context of giving airline passengers notice that the Warsaw Convention in most cases imposes limits of liability for "death or personal injury." Additionally, the Montreal Agreement does not and cannot purport to speak for the Warsaw Convention signatories, since it is not a treaty, but merely an agreement among the major international air carriers. Furthermore, the Guatemala City Protocol is not in effect in the international arena, since only a few countries have ratified it, and cannot be considered dispositive in this country, since it has not been ratified by the Senate. Also unpersuasive is the reasoning of the Supreme Court of Israel, in the only apparent judicial decision from a Warsaw Convention signatory addressing the question, that "desirable jurisprudential policy" mandates an expansive reading of Article 17 to reach purely psychic injuries. This Court cannot give effect to the Israeli court's perceived policy without convincing evidence that the signatories' intent with respect to Article 17 would allow recovery for purely psychic injury. This Court's construction better accords with the Convention's stated purpose of achieving uniformity of rules governing claims arising from international air transportation, since subjecting international air carriers to strict liability for purely mental distress, as would the Guatemala City Protocol and the Montreal Agreement, would be controversial for most signatory countries. Pp. 546-552.
2. The issue whether passengers can recover for mental injuries accompanied by physical injuries is not presented or addressed here, since respondents do not allege physical injury or physical manifestation of injury. Nor does this Court reach the question whether the Convention provides the exclusive cause of action for injuries sustained during international air transportation, since the Court of Appeals did not address it and certiorari was not granted to consider it here. Pp. 552-553.
872 F.2d 1462 (CA11 1989), reversed.
MARSHALL, J., delivered the opinion for a unanimous Court.
John Michael Murray argued the cause for petitioner. With him on the briefs were Aurora A. Ares and Linda Singer Stein.
Joel D. Eaton argued the cause and filed a brief for respondents.
Article 17 of the Warsaw Convention sets forth conditions under which an international air carrier can be held liable for injuries to passengers. This case presents the question whether Article 17 allows recovery for mental or psychic injuries unaccompanied by physical injury or physical manifestation of injury.
Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000 T.S. No. 876 (1934), note following 49 U.S.C. App. § 1502 (hereinafter Warsaw Convention or Convention).
I
On May 5, 1983, an Eastern Airlines flight departed from Miami, bound for the Bahamas. Shortly after takeoff, one of the plane's three jet engines lost oil pressure. The flight crew shut down the failing engine and turned the plane around to return to Miami. Soon thereafter, the second and third engines failed due to loss of oil pressure. The plane began losing altitude rapidly, and the passengers were informed that the plane would be ditched in the Atlantic Ocean. Fortunately, after a period of descending flight without power, the crew managed to restart an engine and land the plane safely at Miami International Airport. 872 F.2d 1462, 1466 (CA11 1989).
Respondents, a group of passengers on the flight, brought separate complaints against petitioner, Eastern Airlines, Inc. (Eastern), each claiming damages solely for mental distress arising out of the incident. The District Court entertained each complaint in a consolidated proceeding. Eastern conceded that the engine failure and subsequent preparations for ditching the plane amounted to an "accident" under Article 17 of the Convention, but argued that Article 17 also makes physical injury a condition of liability. See In re Eastern Airlines, Inc., Engine Failure, Miami Int'l Airport, 629 F. Supp. 307, 312 (SD Fla. 1986). Relying on another federal court's analysis of the French authentic text and negotiating history of the Convention, see Burnett v. Trans World Airlines, Inc., 368 F. Supp. 1152 (NM 1973), the District Court concluded that mental anguish alone is not compensable under Article 17. See 629 F. Supp., at 314.
Each complaint contained two state law tort claims, a state law claim for breach of contract, and a claim for recovery under the Warsaw Convention. In re Eastern Airlines, Inc., Engine Failure, Miami Int'l Airport, 629 F. Supp. 307, 309 (SD Fla. 1986). The District Court dismissed all claims. Ibid. We address only the theory of recovery claimed under the Warsaw Convention.
The Court of Appeals for the Eleventh Circuit reversed, holding that the phrase "lesion corporelle" in the authentic French text of Article 17 encompasses purely emotional distress. See 872 F.2d, at 1480. To support its conclusion, the court examined the French legal meaning of the term "lesion corporelle," the concurrent and subsequent history of the Convention, and cases interpreting Article 17. See id., at 1471-1480. We granted certiorari, 496 U.S. 904 (1990), to resolve a conflict between the Eleventh Circuit's decision in this case and the New York Court of Appeals' decision in Rosman v. Trans World Airlines, Inc., 34 N.Y.2d 385, 358 N.Y.S.2d 97, 314 N.E.2d 848 (1974), which held that purely psychic trauma is not compensable under Article 17. We now hold that Article 17 does not allow recovery for purely mental injuries.
Courts of first instance also have disagreed on this issue. Compare Borham v. Pan American World Airways, 19 Aviation Cases 18,236 (CCH) (SDNY 1986) (purely mental injury covered); and Karfunket v. Compagnie Nationale Air France, 427 F. Supp. 971 (SDNY 1977) (same); and Krystal v. British Overseas Airways Corp. 403 F. Supp. 1322 (CD Cal. 1975) (same); and Husserl v. Swiss Air Transport Co., 388 F. Supp. 1238 (SDNY 1975) ( Husserl II) (same); and Palagonia v. Trans World Airlines, 110 Misc.2d 478, 442 N.Y.S.2d 670 (Sup. 1978) (same) with Burnett v. Trans World Airlines, Inc., 368 F. Supp. 1152 (NM 1973) (excluding purely mental injury); and Husserl v. Swiss Air Transport Co., 351 F. Supp. 702 (S.D. N.Y. 1972) ( Husserl I), aff'd, 485 F.2d 1240 (CA2 1973) (same).
II
"When interpreting a treaty, we `begin "with the text of the treaty and the context in which the written words are used."'" Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 (1988), quoting Societe Nationale Industrielle Aerospatiale v. United States District Court, 482 U.S. 522, 534 (1987), quoting Air France v. Saks, 470 U.S. 392, 397 (1985). Accord, Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 134 (1989); Maximov v. United States, 373 U.S. 49, 53-54 (1963). "Other general rules of construction may be brought to bear on difficult or ambiguous passages." Volkswagenwerk, supra, 486 U.S. at 700. Moreover, "treaties are construed more liberally than private agreements, and to ascertain their meaning, we may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties." Saks, supra, at 396, quoting Choctaw Nation of Indians v. United States, 318 U.S. 423, 431-432 (1943). Accord, Volkswagenwerk, supra, at 700. We proceed to apply these methods in turn.
A
Because the only authentic text of the Warsaw Convention is in French, the French text must guide our analysis. See Saks, supra, at 397-399. The text reads as follows:
"Le transporteur est responsable du dommage survenu en cas de mort, de blessure ou de toute autre lesion corporelle subie par un voyageur lorsque l'accident qui a cause le dommage s'est produit a bord de l'aeronef ou au cours de toutes operations d'embarquement et de debarquement." 49 Stat. 3005 (emphasis added).
The American translation of this text, employed by the Senate when it ratified the Convention in 1934, reads:
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. 49 Stat. 3018 (emphasis added).
Thus, under Article 17, an air carrier is liable for passenger injury only when three conditions are satisfied: (1) there has been an accident, in which (2) the passenger suffered "mort," "blessure," "ou . . . toute autre lesion corporelle," and (3) the accident took place on board the aircraft or in the course of operations of embarking or disembarking. As petitioner concedes, the incident here took place on board the aircraft and was an "accident" for purposes of Article 17. See 872 F.2d, at 1471. Moreover, respondents concede that they suffered neither "mort" nor "blessure" from the mishap. Therefore, the narrow issue presented here is whether, under the proper interpretation of "lesion corporelle," condition (2) is satisfied when a passenger has suffered only a mental or psychic injury.
Courts and commentators agree that "blessure" refers only to "a particular case of physical impact," 872 F.2d 1462, 1472-1473 (CA1 I 1989), and thus does not, by itself, allow recovery for purely psychic harm. See also R. Mankiewicz, The Liability Regime of the International Air Carrier 146 (1981) (hereinafter Mankiewicz). Respondents do not contend that "blessure" has any other meaning.
We must consider the "French legal meaning" of "lesion corporelle" for guidance as to the shared expectations of the parties to the Convention, because the Convention was drafted in French by continental jurists. See Saks, supra, at 399. Perhaps the simplest method of determining the meaning of a phrase appearing in a foreign legal text would be to consult a bilingual dictionary. Such dictionaries suggest that a proper translation of "lesion corporelle" is "bodily injury." See, e. g., J. Jeraute, Vocabulaire Fransais-Anglais et Anglais-Francais de Termes et Locutions Juridiques 205 (1953) (translating "bodily harm" or "bodily injury" as "lesion ou blessure corporelle"); see also id., at 95 (translating the term "lesion" as "injury, damage, prejudice or wrong"); id., at 41 (giving as one sense of "corporel" the English word "bodily"); 3 Grand Larousse de la Langue Francaise 1833 (1987) (defining "lesion" as a "[m]odification de la structure d'un tissu vivant sous l'influence d'une cause morbide"). These translations, if correct, clearly suggest that Article 17 does not permit recovery for purely psychic injuries. Although we have previously relied on such French dictionaries as a primary method for defining terms in the Warsaw Convention, see Saks, supra, at 400, and n. 3, and n. 3, we recognize that dictionary definitions may be too general for purposes of treaty interpretation. Our concerns are partly allayed when, as here, the dictionary translation accords with the wording used in the "two main translations of the 1929 Convention in English." Mankiewicz 197. As we noted earlier, the translation used by the United States Senate when ratifying the Warsaw Convention equated "lesion corporelle" with "bodily injury." See supra at 535. The same wording appears in the translation used in the United Kingdom Carriage by Air Act of 1932. See L. Goldhirsch, The Warsaw Convention Annotated: A Legal Handbook 199, 204 (1988) (hereinafter Goldhirsch). We turn, then, to French legal materials, Saks, 470 U.S., at 400, to determine whether French jurists' contemporary understanding of the term "lesion corporelle" differed from its translated meaning.
There is much agreement even among courts that believe that "lesion corporelle" does provide recovery for such injuries that, if "bodily injury" is the correct translation of "lesion corporelle," Article 17 does not permit recovery for purely psychic injuries. See, e. g., 872 F.2d, at 1471 ("While the use of the word corporelle would, if read literally, appear to imply that recovery for dommage mentale is unavailable, we are persuaded that this literal meaning is unwarranted"); Palagonia v. Trans World Airlines, supra, at 482, 442 N.Y.S.2d, at 673 (arguing that "[t]he dictionary or literal translation of lesion corporelle as `bodily injury' is not accurate as used in a legal document"). But see Husserl II, supra, at 1250 (arguing that "bodily injury" "can . . . be construed to relate to emotional and mental injury").
In 1929, as in the present day, lawyers trained in French civil law would rely on the following principal sources of French law: (1) legislation, (2) judicial decisions, and (3) scholarly writing. See generally 1 M. Planiol G. Ripert, Traite elementaire de droit civil, pt. 1, Nos. 10, 122, 127 (12th ed. 1939) (Louisiana State Law Inst. trans. 1959); F. Geny, Methode d'Interpretation et Sources en Droit Prive Positif Nos. 4550 (2d ed. 1954) (Louisiana State Law Inst. trans. 1963); R. David, French Law: Its Structure, Sources, and Methodology 154 (M. Kindred trans. 1972). Our review of these materials indicates neither that "lesion corporelle" was a widely used legal term in French law nor that the term specifically encompassed psychic injuries.
Turning first to legislation, we find no French legislative provisions in force in 1929 that contained the phrase "lesion corporelle." The principal provision of the French Civil Code relating to the scope of compensable injuries appears to be Article 1382, which provides in very general terms: "Tout fait quelconque de l'homme, qui cause a autrui un dommage, oblige celui par la faute duquel il est . . . arrive, a le reparer." See 2 Planiol Ripert, supra, at pt. 1, No. 863 (translating Article 1382 as, "Every act whatever of man which causes damage to another obliges him by whose fault it happened to repair it").
Turning next to cases, we likewise discover no French court decisions in or before 1929 that explain the phrase "lesion corporelle," nor do the parties direct us to any. Indeed, we find no French case construing Article 17 of the Warsaw Convention to cover psychic injury. The only reports of French cases we did find that used the term "lesion corporelle" are relatively recent, and involve physical injuries caused by automobile accidents and other incidents. These cases tend to support the conclusion that, in French legal usage, the term "lesion corporelle" refers only to physical injuries. However, because they were decided well after the drafting of the Warsaw Convention, these cases do not necessarily reflect the contracting parties' understanding of the term "lesion corporelle."
In the several such cases that we found, there was no evidence that French courts would use the term "lesion corporelle" to describe purely psychic injuries. In one case, for example, the highest French court of ordinary jurisdiction, the Cour de Cassation, specifically distinguished "coups et blessures volontaires" ("intentional blows and injuries") sustained by the plaintiff — which the court characterized as "lesions" — from "[l]es troubles de nature nevrotique" ("neurotic disorders") from which the plaintiff suffered as a result of a prior incident. See Judgment of November 4, 1971, Cour de Cassation, 1971 Bull. Civ. II 219, 220.
Turning finally to French treatises and scholarly writing covering the period leading up to the Warsaw Convention, we find no materials (and the parties have brought none to our attention) indicating that "lesion corporelle" embraced psychic injury. Subsequent to the adoption of the Warsaw Convention, some scholars have argued that "lesion corporelle," as used in Article 17, should be interpreted to encompass such injury. See, e. g., Mankiewicz 146 (arguing that, "in French law, the expression lesion corporelle covers any `personal' injury whatsoever"); G. Miller, Liability in International Air Transport 128 (1977) (hereinafter Miller) (arguing that "a liberal interpretation of [Article 17] would be more in line with the spirit of the Convention"). These scholars draw on the fact that, by 1929, France — unlike many other countries, see infra, at 544-545, and n. 10 — permitted tort recovery for mental distress. See, e. g., 2 Planiol Ripert, supra, at pt. 1, No. 868A (citing cases awarding damages for injury to honor and for loss of affection). However, this general proposition of French tort law does not demonstrate that the specific phrase chosen by the contracting parties — "lesion corporelle" — covers purely psychic injury.
We find it noteworthy, moreover, that scholars who read "lesion corporelle" as encompassing psychic injury do not base their argument on explanations of this term in French cases or French treatises or even in the French Civil Code; rather, they chiefly rely on the principle of French tort law that any damage can "giv[e] rise to reparation when it is real and has been verified." 2 Planiol Ripert, supra, at pt. 1, No. 868. We do not dispute this principle of French law. However, we have been directed to no French case prior to 1929 that allowed recovery based on that principle for the type of mental injury claimed here — injury caused by fright or shock — absent an incident in which someone sustained physical injury. Since our task is to "give the specific words of the treaty a meaning consistent with the shared expectations of the contracting parties," Saks, supra, at 399, we find it unlikely that those parties' apparent understanding of the term "lesion corporelle" as "bodily injury" would have been displaced by a meaning abstracted from the French law of damages. Particularly is this so when the cause of action for psychic injury that evidently was possible under French law in 1929 would not have been recognized in many other countries represented at the Warsaw Convention. See infra, at 544-545, and n. 10.
Of the two cases cited by Mankiewicz to demonstrate that French law did compensate mental injuries, one involved recovery by a stepdaughter for emotional distress resulting from the death of her stepmother and the other involved recovery for injury to honor arising from adultery. See Mankiewicz 145 (citing decisions of the highest French court in 1923 and 1857). See also XI International Encyclopedia of Comparative Law: Torts ch. 9, § 9-39, pp. 117, and nn. 114-115 (A. Tunc ed. 1972) (citing, as the first personal injury cases permitting recovery for nonpecuniary damages, an 1833 French decision in which "counsel for the plaintiff took as an illustration of dommage moral for which recovery should be permitted the grief of a family upon the death of one of their members" and an 1881 Belgian decision in a wrongful death case). Whether the "shared expectation" of the Warsaw Convention parties was that the distress experienced by relatives of injured or dead airline passengers qualified under Article 17 as " dommage survenu en cas de mort, [ou] de blessure . . . subie par un voyageur" (" damage sustained in the event of the death or wounding of a passenger") is a different question from whether psychic injury actually suffered by a passenger is encompassed by the term "lesion corporelle."
Nor is this conclusion altered by our examination of Article 17's structure. In the decision below, the Court of Appeals found that the Article's wording "suggests that the drafters did not intend to exclude any particular category of damages," because if they had intended "to refer only to injury caused by physical impact," they "would not have singled out and specifically referred to a particular case of physical impact such as blessure (`wounding')." 872 F.2d, at 1472-1473 (citing Mankiewicz 146). This argument, which has much the same force as the surplusage canon of domestic statutory construction, is plausible. Cf. Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979). Yet one might draw a contrary inference from the same language. As noted, one meaning of "lesion" is a change in the structure of an organ due to injury or disease. See supra, at 536, citing 3 Grand Larousse de la Langue Francaise 1833 (1987). If "blessure" refers to injuries causing visible ruptures in the body (a common meaning of a "wounding"), "lesion corporelle" might well refer to a more general category of physical injuries that includes internal injuries caused, for example, by physical impact, smoke or exhaust inhalation, or oxygen deprivation. Admittedly, this inference still runs afoul of the Court of Appeals' surplusage argument. However, because none of the other sources of French legal meaning noted above supports the Court of Appeals' construction, we are reluctant to give this argument dispositive weight.
The same structural argument offered by the Court of Appeals was advanced by one of the German delegates to the Warsaw Convention. See Palagonia v. Trans World Airlines, 110 Misc.2d 478, 483, 442 N.Y.S.2d 670, 673-674 (Sup. 1978) (quoting testimony of Otto Riese). Accordingly, the official German translation of "lesion corporelle" adopted by Austria, Germany, and Switzerland uses German terms whose closest English translation is apparently "infringement on the health." See Mankiewicz 146. We are reluctant, however, to place much weight on an English translation of a German translation of a French text, particularly when we have been unable to find (and the parties have not cited) any German, Austrian, or Swiss cases adhering to the broad interpretation of Article 17 that the German delegate evidently espoused.
In sum, neither the Warsaw Convention itself nor any of the applicable French legal sources demonstrates that "lesion corporelle" should be translated other than as "bodily injury" — a narrow meaning excluding purely mental injuries. However, because a broader interpretation of "lesion corporelle" reaching purely mental injuries is plausible, and the term is both ambiguous and difficult, see supra, at 535, we turn to additional aids to construction.
We will refer to these alternative interpretations of "lesion corporelle" as the "narrow" and "broad" readings of the term.
B
Translating "lesion corporelle" as "bodily injury" is consistent, we think, with the negotiating history of the Convention. " The treaty that became the Warsaw Convention was first drafted at an international conference in Paris in 1925." Air France v. Saks, 470 U.S. at 401; see also Chan v. Korean Air Lines, Ltd., 490 U.S. at 139 (Brennan, J., concurring in judgment). See generally [1925 Paris] Conference Internationale de Droit Prive Aerien (1936) (hereinafter Paris Conference). The final protocol of the Paris Conference contained an specifying that: "The carrier is liable for accidents, losses, breakdowns, and delays. It is not liable if it can prove that it has taken reasonable measures designed to preempt damage. . . ." Saks, supra, at 401, translating Article 5 of the protocol, Paris Conference 87. It appears that "[t]his expansive provision, broadly holding carriers liable in the event of an accident, would almost certainly have permitted recovery for all types of injuries, including emotional distress." Sisk, Recovery for Emotional Distress Under the Warsaw Convention: The Elusive Search for the French Legal Meaning of Lesion Corporelle, 25 Texas Int'l L.J. 127, 142 (1990), citing Miller 124.
The Paris Conference appointed a committee of experts, the Comite International Technique d'Experts Juridiques Aeriens (CITEJA), to revise its final protocol for presentation to the Warsaw Conference. See Chan, supra, at 139 (Brennan, J., concurring in judgment); Saks, supra, at 401. The CITEJA draft split the liability article of the Paris Conference's protocol into three provisions, with one addressing damages for injury to passengers, the second addressing injury to goods, and the third addressing losses caused by delay. The CITEJA subsection on injury to passengers introduced the phrase "en cas de mort, de blessure ou de toute autre lesion corporelle." [Deuxieme] Conference Internationale de Droit Prive Aerien, 4-12 Octobre 171-172 (1929) (Article 21, subsection (a) of the CITEJA draft). This language was retained in Article 17 ultimately adopted by the Warsaw Conference. See 49 Stat. 3005. Although there is no definitive evidence explaining why the CITEJA drafters chose this narrower language, we believe it is reasonable to infer that the Conference adopted the narrower language to limit the types of recoverable injuries. Cf. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S., at 700-701 (noting significance of change in negotiating history of Hague Service Convention from less precise term in draft to more precise term in final treaty provision).
Courts and commentators, including the Court of Appeals, have cited the doctoral thesis of a French scholar, Yvonne Blanc-Dannery, as extrinsic evidence of the Warsaw parties' intent. See, e. g., 872 F.2d, at 1472; Palagonia, 110 Misc.2d, at 482, 442 N.Y.S.2d, at 673; Mankiewicz 146. According to Mankiewicz, the Blanc-Dannery thesis was written under the supervision of Georges Ripert. Mankiewicz 146, citing Blanc-Dannery, La Convention de Varsovie et les Regles du Transport Aerien International (1933) (hereinafter Blanc-Dannery). Georges Ripert was a leading French delegate at the Warsaw Convention and an expert of the French Government at the CITEJA proceedings. Minutes, Second International Conference on Private Aeronautical Law, October 4-12, 1929, Warsaw 6 (R. Horner D. Legrez trans. 1975) (hereinafter Minutes). Mankiewicz translates a passage from the Blanc-Dannery thesis as follows: "`The use of the expression lesion after the words `death' and `wounding' encompasses and contemplates cases of traumatism and nervous troubles, the consequences of which do not immediately become manifest in the organism, but which can be related to the accident.'" Mankiewicz 146. Eastern offers persuasive evidence that Mankiewicz's translation may be overbroad. See Reply Brief for Petitioner 2 (noting that the French word "perturbations" should be translated to connote a disturbance or aberration in a bodily organ or function, rather than mere traumatisms or nervous troubles). Even if Mankiewicz's translation is accurate, however, Blanc-Dannery's asserted definition is not supported by evidence from the CITEJA or Warsaw proceedings. See Blanc-Dannery 62. In the absence of such support, we find the Blanc-Dannery thesis to have little or no value as evidence of the drafters' intent.
Our review of the documentary record for the Warsaw Conference confirms — and courts and commentators appear universally to agree — that there is no evidence that the drafters or signatories of the Warsaw Convention specifically considered liability for psychic injury or the meaning of "lesion corporelle." See generally Minutes. Two explanations commonly are offered for why the subject of mental injuries never arose during the Convention proceedings: (1) many jurisdictions did not recognize recovery for mental injury at that time, or (2) the drafters simply could not contemplate a psychic injury unaccompanied by a physical injury. See, e. g., Husserl v. Swiss Air Transport Co., 388 F. Supp. 1238, 1249 (SDNY 1975) ( Husserl II; Cie Air France v. Teichner, 39 Revue Francaise de Droit Aerien 232, 242, 23 Eur.Tr.L. 87, 101 (Israel 1984); Mankiewicz 144-145; Miller 123-125. Indeed, the unavailability of compensation for purely psychic injury in many common and civil law countries at the time of the Warsaw Conference persuades us that the signatories had no specific intent to include such a remedy in the Convention. Because such a remedy was unknown in many, if not most, jurisdictions in 1929, the drafters most likely would have felt compelled to make an unequivocal reference to purely mental injury if they had specifically intended to allow such recovery.
Although French law recognized recovery for certain types of mental distress long before the Convention was drafted, see Mankiewicz 145, in common law jurisdictions, mental distress generally was excluded from recovery in 1929. See Miller 113. Such recovery was not definitively recognized in the United Kingdom until the early 1940's. See Mankiewicz 145; J. Fleming, Law of Torts 49 (1985) (hereinafter Fleming). American courts insisted on a physical impact rule long after English courts abandoned the practice. See ibid.; W. Keeton, D. Dobbs, R. Keeton D. Owen, Prosser and Keeton on Law of Torts § 54, p. 363 (5th ed. 1984). In the State of New York, where many Warsaw Convention cases have been litigated, recovery for purely mental injury was not recognized until 1961. See Mankiewicz 145, citing Battalla v. State, 10 N.Y.2d 237, 219 N.Y.S.2d 34, 176 N.E.2d 729 (1961); see also Miller 113-115 (noting the post-1929 liberalization of rules for tort recovery in the United Kingdom and the United States). Several of the civil law and socialist signatories to the Warsaw Convention were slow to recognize recovery for nonpecuniary losses such as pain and suffering, grief caused by the death of a relative, or mental distress. See XI International Encyclopedia of Comparative Law: Torts, Ch. 9, §§ 9-39, 9-40. The Netherlands, for example, did not permit nonpecuniary damages until 1943, and the German and Swiss Civil Codes generally barred nonpecuniary damages, though with certain exceptions — including an exception for cases of personal injury. See id., at § 9-41. In addition, the Soviet Union, another original signatory, has never recognized compensation for nonpecuniary loss. Id., at § 9-37. In countries barring recovery for nonpecuniary losses, recovery for mental injuries might have been available where financial loss could be shown, however, we are not aware of any such cases.
In this sense, we find it significant that, when the parties to a different international transport treaty wanted to make it clear that rail passengers could recover for purely psychic harms, the drafters made a specific modification to this effect. The liability provision of the Berne Convention on International Rail, drafted in 1952, originally conditioned liability on "la mort, les blessures et toute autre atteinte, a l'integrite corporelle." International Convention Concerning the Carriage of Passengers and Luggage By Rail, Berne, Oct. 25, 1952, 242 U.N.T.S. 355, Article 28, p. 390. The drafters subsequently modified this provision to read "l'integrite physique ou mentale." See Additional Convention to the International Convention Concerning the Carriage of Passengers and Luggage by Rail (CIV) of Feb. 25, 1961, Relating to the Liability of the Railway for Death of and Personal Injury to Passengers, done Feb. 26, 1966, Art. 2, reprinted in Transport: International Transport Treaties V-52 (Kluwer Publishers) (Supp. 1-10, Jan. 1986) (emphasis added).
The narrower reading of "lesion corporelle" also is consistent with the primary purpose of the contracting parties to the Convention: limiting the liability of air carriers in order to foster the growth of the fledgling commercial aviation industry. See Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 256 (1984); Minutes 37; Lowenfeld Mendelsohn, The United States and The Warsaw Convention, 80 Harv. L. Rev. 497, 498-499 (1967) (hereinafter Lowenfeld Mendelsohn). Indeed, it was for this reason that the Warsaw delegates imposed a maximum recovery of $8,300 for an accident — a low amount even by 1929 standards. See Lowenfeld Mendelsohn 498-499. Whatever may be the current view among Convention signatories, in 1929, the parties were more concerned with protecting air carriers and fostering a new industry than providing full recovery to injured passengers, and we read "lesion corporelle" in a way that respects that legislative choice.
The second goal of the Convention was to establish uniform rules governing documentation such as airline tickets and waybills and uniform procedure for addressing claims arising out of international transportation. See Minutes 85, 87, Lowenfeld Mendelsohn 499. Our construction of "lesion corporelle" also is consistent with that goal. See infra at 1502.
C
We also conclude that, on balance, the evidence of the post-1929 "conduct" and "interpretations of the signatories," Saks, 470 U.S. at 403, supports the narrow translation of "lesion corporelle."
In the years following adoption of the Convention, some scholars questioned whether Article 17 extended to mental or emotional injury. See, e. g., Beaumont, Need for Revision and Amplification of the Warsaw Convention, 16 J. Air L. Com. 395, 402 (1949); R. Coquoz, Le Droit Prive International Aerien 122 (1938); Sullivan, The Codification of Air Carrier Liability by International Convention, 7 J. Air. L. 1, 19 (1936). In 1951, a committee composed of 20 Warsaw Convention signatories met in Madrid and adopted a proposal to substitute "affection corporelle" for "lesion corporelle" in Article 17. See International Civil Aviation Organization Legal Committee, Minutes and Documents of the Eighth Session, Madrid, ICAO Doc. 7229-LC/133, pp. xiii, 137 (1951). The French delegate to the committee proposed this substitution because, in his view, the word "lesion" was too narrow, in that it "presupposed a rupture in the tissue, or a dissolution in continuity" which might not cover an injury such as mental illness or lung congestion caused by a breakdown in the heating apparatus of the aircraft. See id., at 136. The United States delegate opposed this change if it "implied the inclusion of mental injury or emotional disturbances or upsets which were not connected with or the result of bodily injury," see id., at 137, but the committee adopted it nonetheless, see ibid. Although the committee's proposed amendment was never subsequently implemented, its discussion and vote in Madrid suggest that, in the view of the 20 signatories on the committee, "lesion corporelle" in Article 17 had a distinctly physical scope.
In finding that the signatories' post-1929 conduct supports the broader interpretation of "lesion corporelle," the Court of Appeals relied on three international agreements: The Hague Protocol of 1955, The Montreal Agreement of 1966, and the Guatemala City Protocol of 1971. See 872 F.2d, at 1474-1475. For each of these agreements, the Court of Appeals emphasized that English translations rendered "lesion corporelle" as "personal injury," instead of "bodily injury." In our view, none of these agreements supports the broad interpretation of "lesion corporelle" reached by the Court of Appeals.
The Hague Protocol amended Article 3 of the Warsaw Convention, which sets forth the particular information a passenger's ticket must contain, to require notice of the limitation upon the carrier's liability for passenger injuries under the Convention. See Hague Protocol Article III, reprinted in Goldhirsch 266. While the authentic French version of Article 3 retained the phrase "lesion corporelle," the authentic English version of the Hague Protocol, which was proposed by the United States delegation, used the phrase "personal injury." See 2 International Civil Aviation Organization, International Conference on Private Air Law, The Hague, Sept. 1955, ICAO Doc. 7686-LC/140, p. 243 (proposal of the United States); see also Goldhirsch 266 (citing final version of Hague Protocol). Citing Saks, the Court of Appeals treated the Hague Protocol's use of "personal injury" as a "subsequent interpretation of the signatories" that "helps clarify the meaning" of "lesion corporelle." See 872 F.2d, at 1474-1475. However, we do not accept the argument that the Hague Protocol signatories intended "personal injury" to be an interpretive translation of "lesion corporelle" where there is no evidence that they intended the authentic English text to effect a substantive change in, or clarification of, that term. Moreover, the portion of Article 3 of the Hague Protocol in which "personal injury" appears is concerned solely with informing passengers that, when the convention "governs" it "in most cases limits the liability of carriers for death or personal injury." See supra, n. 13. It may be, therefore, that the signatories used "personal injury" not as an interpretive translation of "lesion corporelle," but merely as a way of giving a summary description of the limitations of liability imposed by the Convention.
The Hague Protocol also amended the Convention to double the limit of liability for accidents to $16,600. See Hague Protocol Article XI, reprinted in Goldhirsch 268-269; Lowenfeld Mendelsohn 507-509.
At the Hague Conference, the signatories were presented with a proposal to amend Article 17 to cover purely mental injuries. The Greek delegation proposed adding the word "mental" to Article 17 because it was "not clear" whether Article 17 allowed recovery for such injury. See I International Civil Aviation Organization, International Conference on Private Air Law, The Hague, Sept. 1955, ICAO Doc. 7686-LC/140, p. 261. No one seconded this proposal. Ibid. In the absence of further discussion by the delegates, we cannot infer much from that fact.
According to the English text of the final version, passenger tickets must contain
"a notice to the effect that, if the passenger's journey involves an ultimate destination or stop in a country other than the country of departure, the Warsaw Convention may be applicable and that the Convention governs and in most cases limits the liability of carriers for death or personal injury and in respect of loss of or damage to baggage." Goldhirsch 266 (emphasis added).
The French version of the text emphasized above reads: "en cas de mort ou de lesion corporelle." Id., at 256.
The Montreal Agreement of 1966 is similarly inconclusive. The Agreement, which affects only international flights with connecting points in the United States, raised the limit of accident liability to $75,000 and waived due care defenses. See Montreal Agreement, reprinted in Goldhirsch 317-318; Lowenfeld Mendelsohn 596-597. The Court of Appeals noted that, under the Montreal Agreement, the notice appearing on passenger tickets used the term "personal injury," rather than "bodily injury," and that the United States Civil Aeronautics Board used these terms interchangeably in approving the Agreement. 872 F.2d, at 1474. For two reasons, we do not believe that this evidence bears on the signatories' understanding of "lesion corporelle" in Article 17. First, as the Court of Appeals acknowledged, "[t]he Montreal Agreement is not a treaty, but rather an agreement among all major international air carriers that imposes a quasi-legal and largely experimental system of liability essentially contractual in nature." Id., at 1468-1469. Therefore, the Montreal Agreement does not and cannot purport to speak for the signatories to the Warsaw Convention. Second, the Montreal Agreement does not purport to change or clarify the provisions of Article 17.
We likewise do not believe that the Guatemala City Protocol of 1971 sheds any light upon the intended scope of Article 17. The Protocol was drafted in three authentic texts, English, French, and Spanish, but the French text was to control in cases of conflict. See Guatemala City Protocol Article XXVI, reprinted in Goldhirsch 329. The Protocol amended the French text of Article 17 by deleting the word "blessure," while retaining "lesion corporelle." See 2 International Civil Aviation Organization, International Conference on Air Law, Guatemala City, ICAO Doc. 9040-LC/167-2, p. 183 (1972). Additionally, the English text of the Protocol substituted "personal injury" for "wounding or other bodily injury" in Article 17. See Guatemala City Protocol Article IV, reprinted in Goldhirsch 320-321. The Court of Appeals read the changes in both the French and English versions of Article 17 as supporting an interpretation of "lesion corporelle" broader than "bodily injury." See 872 F.2d, at 1475.
For several reasons, however, we disagree. First, there is no evidence that the changes to the English or French text were intended to effect a substantive change or clarification. Cf. Miller 123 (noting that the change to the English text was inconspicuously proposed by a drafting group of the ICAO Legal Committee as a minor drafting improvement). Neither mental injuries nor the minor drafting changes were discussed at the Guatemala City Conference. See 1 International Civil Aviation Organization, International Conference on Air Law, Minutes, Guatemala City, ICAO Doc. 9040 LC/167-1, pp. 31-38, 41-63 (1972). Second, of the approximately 120 signatories to the Warsaw Convention, only a few countries have actually ratified the Guatemala City Protocol, see Mankiewicz 237, and therefore the Protocol is not in effect in the international arena. Likewise, we have stated that, because the United States Senate has not ratified the Protocol, we should not consider it to be dispositive. See Saks, supra, at 403.
We must also consult the opinions of our sister signatories in searching for the meaning of a "lesion corporelle." See Saks, 470 U.S., at 404. The only apparent judicial decision from a sister signatory addressing recovery for purely mental injuries under Article 17 is that of the Supreme Court of Israel. That court held that Article 17 does allow recovery for purely psychic injuries. See Cie Air France v. Teichner, 39 Revue Francaise de Droit Aerien, at 243, 23 Eur.Tr.L. at 102. Teichner arose from the hijacking in 1976 of an Air France flight to Entebbe, Uganda. Passengers sought compensation for psychic injuries caused by the ordeal of the hijacking and detention at the Entebbe Airport. While acknowledging that the negotiating history of the Warsaw Convention was silent as to the availability of such compensation, id., at 242, 23 Eur.Tr.L., at 101, the court determined that "desirable jurisprudential policy" ("la politique jurisprudentielle souhaitable") favored an expansive reading of Article 17 to reach purely psychic injuries. Id., at 243, 23 Eur.Tr.L., at 102. In reaching this conclusion, the court emphasized the post-1929 development of the aviation industry and the evolution of Anglo-American and Israeli law to allow recovery for psychic injury in certain circumstances. Ibid., 23 Eur.Tr.L., at 101-102. In addition, the court followed the view of Miller that this expansive construction was desirable to avoid an apparent conflict between the French and English versions of the Guatemala City Protocol. Id., at 243-244, 23 Eur.Tr.L., at 102, citing Miller 128-129.
In the only published versions that we could find, the Israeli opinion is reported in French.
Although we recognize the deference owed to the Israeli court's interpretation of Article 17, see Saks, supra, at 404, we are not persuaded by that court's reasoning. Even if we were to agree that allowing recovery for purely psychic injury is desirable as a policy goal, we cannot give effect to such policy without convincing evidence that the signatories' intent with respect to Article 17 would allow such recovery. As discussed, neither the language, negotiating history, nor postenactment interpretations of Article 17 clearly evidences such intent. Nor does the Guatemala City Protocol support the Israeli court's conclusion, because nothing in the Protocol purports to amend Article 17 to reach mental injuries. Moreover, although the Protocol reflects a liberalization of attitudes toward passenger recovery, in that it provides for strict liability, see Article IV, reprinted in Goldhirsch 320, the fact that the Guatemala City Protocol is still not in effect after almost 20 years since it was drafted should caution against attaching significance to it.
Moreover, we believe our construction of Article 17 better accords with the Warsaw Convention's stated purpose of achieving uniformity of rules governing claims arising from international air transportation. See n. 11, supra. As noted, the Montreal Agreement subjects international carriers to strict liability for Article 17 injuries sustained on flights connected with the United States. See supra, at 549. Recovery for mental distress traditionally has been subject to a high degree of proof, both in this country and others. See Prosser and Keeton on Torts, at 60-65, 359-361 (American courts require extreme and outrageous conduct by the tortfeasor); Fleming 49-50 (British courts limit such recovery through the theory of foreseeability); Miller 114, 126 (French courts require proof of fault and proof that damage is direct and certain). We have no doubt that subjecting international air carriers to strict liability for purely mental distress would be controversial for most signatory countries. Our construction avoids this potential source of divergence.
III
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. Although Article 17 renders air carriers liable for "damage sustained in the event of" ("dommage survenu en cas de") such injuries, see 49 Stat. 3005, 3018, we express no view as to whether passengers can recover for mental injuries that are accompanied by physical injuries. That issue is not presented here, because respondents do not allege physical injury or physical manifestation of injury. See App. 3-9.
Eastern urges us to hold that the Warsaw Convention provides the exclusive cause of action for injuries sustained during international air transportation. The Court of Appeals did not address this question, and we did not grant certiorari to consider it. We therefore decline to reach it here.
The judgment of the Court of Appeals is reversed.
It is so ordered.