Challenges to Treaty Interpretation Case: Parties: Eastern Airlines, Inc. v. Floyd (1991, US) [pp.

64-74] Plaintiff Defendant -

Procedural History: Facts: An Eastern Airlines flight from Miami to Bahamas experienced some trouble, and had to turn back to Miami. On the way back, there were further complications, and an announcement made to passengers that plane would be ditched in the Atlantic Ocean. After a period of descending flight without power, the crew was actually able to restart the engine and land safely in Miami. 3 of the passengers brought a suit claiming mental distress. The district court concluded that mental distress alone was not compensable under Art 17 of the Warsaw Convention (which set forth the conditions under which an international carrier could be liable to passengers). Granted certiorari b/c of a French phrase "lesion corporelle" which may be interpreted to mean purely emotional stress; now in the court of appeals. Issue: Whether Art. 17 of the Warsaw Convention allows for recovery for mental or psychic injuries unaccompanied by physical injury or physical manifestations of injury. Holding: After granting certiorari, court of appeals reversed, holding that Warsaw Convention did not allow recovery for purely emotional distress. Reasoning: Warsaw Convention written in French, so they have to look at the actual language. The text reads, "lesion corporelle," and the court finds that it technically means "bodily injury," where taken more broadly can mean any personal injury whatsoever. Because of the ambiguity, court then turns to the negotiating history of the Warsaw convention, and to the fact that a remedy for emotional injury was unknown in many jurisdictions at the time of the Warsaw convention to conclude that "lesion corporelle" does not encompass mental injury. Notes • Writers of the Warsaw convention say that only the French text (original) is the correct meaning. • Sources used to interpret the treaty ○ Dictionary (to assess the plaintext) § French definitions and interpretations in French law ○ Historical context § We want to know the intent of the drafters. What did they intend to consent to? § Purpose behind the drafting - what were states seeking to do? (also part of the negotiating history) □ They wanted airlines to prosper, so to expand the scope of liability would not be in their intentions ○ Negotiating history § In the international realm, this may be looked at last (sometimes also in the domestic realm) ○ Treatises & scholarly writings ○ How other countries had interpreted the text § Found that only one country (Israel) interpreted it to mean including mental distress • Vienna Convention - Art 31 (3) - general rules of interpretation

3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. • Art 32: Suppl means of interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.

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