up to $200,000 for death or injury incurred during international air transportation. The cost of the plan would be financed by a surcharge of two dollars for each ticket.

In approving the plan, the CAB indicated that it was not the sole means of recovery for claimants but "an effort to provide the type and amount of coverage the U.S. Government feels necessary to meet the needs of the international passengers under a system of absolute liability." The CAB pointed out that those passengers wanting insurance that requires only proof of liability are still free to purchase such coverage. Implementation of the plan would include a notice with all tickets reminding passengers of the option to purchase standard airline

insurance.

CAB Release 77-128 (July 21, 1977).

The Warsaw Convention for the Unification of Certain Rules relating to International Transportation by Air, with Additional Protocol was concluded on Oct. 12, 1929 (TS 876; 49 Stat. 3000; 2 Bevans 983; 137 LNTS 11; entered into force for the United States on Oct. 29, 1934, subject to a reservation).

Liability of Employees of Carrier

In Reed v. Wiser, 555 F. 2d 1079 (1977), the U.S. Court of Appeals for the Second Circuit held that the personal representatives, heirs, and next of kin of nine airline passengers killed when a bomb on board an airplane exploded could not recover from the air carrier's employees, or from the carrier and its employees together, a greater sum than that recoverable in a suit against the carrier itself due to the limits imposed by the Warsaw Convention for the Unification of Certain Rules relating to International Transportation by Air, with additional Protocol, concluded on October 12, 1929 (TS 876; 49 Stat. 3000; 2 Bevans 983; 137 LNTS 11; entered into force for the United States October 29, 1934). The court of appeals, in an opinion by Circuit Judge Walter R. Mansfield, reversed a district court decision which held that the limitation of liability provisions of the Warsaw Convention did not apply to employees or agents of the carrier. In arriving at its decision, the court of appeals relied, inter alia, on statements of intention by drafters of the Warsaw Convention, the underlying purposes of the Convention, and the need for a uniform rule governing the limits of employee liability.

Excerpts from Circuit Judge Mansfield's opinion follow:

The most immediately relevant provisions of the Convention are article 17 (imposing on the carrier liability for the death or injury of a passenger arising from an accident sustained on an aircraft), article 22 (limiting the carrier's liability for each passenger to a fixed sum of francs) and article 24 (providing that any action for

damages under article 17 is subject to the conditions and limits of the Convention.

555 F.2d 1082.

Article 22

English
(Unofficial)

[1] "In the transportation of passengers the liability of the carrier for each passenger shall be limited to the sum of 125,000 francs. [In 1934, about $8,300]. . . . Nevertheless, by special contract, the carrier and the passenger may agree to a higher limit of liability."

While we have not attempted to familiarize ourselves with the legal systems of the over 100 member states, it is clear that in at least some jurisdictions the language of art. 22(1) would have the effect of limiting the liability of the carrier's employees as well as that of the carrier. As the author of the draft convention submitted to the conference at Warsaw, Professor Ambrosini of Italy, later stated:

He had always thought that the Warsaw Convention regulated not only the liability of the carrier, but, at the same time, that of his servants or agents, and especially for the simple reason that. in his opinion, the carrier and his servants or agents were, from the legal point of view, the same person. But the pilots had always sought a provision in this Convention which would clearly define their own legal situation which was reasonable and appropriate.” (Emphasis added)

1 International Conference on Private Air Law, The Hague, September, 1955, Minutes 220 (ICAO Doc. 7686-LC/140 1956). Later Professor Ambrosini expanded on this interpretation:

As to the more general question whether the Warsaw Convention provided for the limitation of liability of the servants or agents, his opinion was that, under the general legislative and legal system, servants and agents, as the longa manus of their employer, would enjoy the same situation as the latter. From the legal point of view, there could not be a system whereby the carrier would be liable with limits and the servants and agents without limits.

Guadalajara Convention, 1 International Conference on Private Air Law, Guadalajara, August-September, 1961, Minutes 134 (ICAO Doc. 8301-LC/149-1 1962). . .

To permit a suit for an unlimited amount of damages against a carrier's employees for personal injuries to a passenger would unquestionably undermine this purpose behind article 22, since it would

permit plaintiffs to recover from the carrier through its employees damages in excess of the Convention's limits.

*

The district court's decision, foresaking one uniform rule governing the limits of employee liability, would raise the very real prospect that in future international air disaster cases the plaintiffs would seek to circumvent the Convention's limitation by bringing suit against the pilot or some other employee of the airline involved, thus requiring the court to determine what domestic law applies and whether under that law recovery might be had for an amount greater than that recoverable against the airline.

*

...

Accordingly, we hold that plaintiffs may not recover from an air carrier's employees or from the carrier and its employees together a sum greater than that recoverable in a suit against the carrier itself as limited by the Warsaw Convention with its applicable agreements and protocols. The order of the district court is reversed with instructions to reinstate defendants' defense based on that Convention.

555 F. 2d 1083-1093.

The circuit court opinion dismissed in the following fashion the plaintiffs' argument that the failure of the United States to adhere to the Hague Protocol of 1955, which contained a new art. 25A extending the Warsaw limits of liability to the carrier's servants and agents acting within the scope of their employment, was a relevant datum in construing the Warsaw Convention's provisions:

In the present case the district court, while conceding that a debate had existed on the issue of whether the Convention's liability limits applied to a carrier's employees, nevertheless relied heavily upon the later refusal of the United States to ratify the Hague Protocol which contained, among other items, article 25A. We believe this reliance on the part of the district court to be misplaced, since the refusal to ratify the Protocol was due to the United States' dissatisfaction with an entirely different aspect of the Protocol-its failure to provide a sufficient increase in the liability limits rather than to its express application of these limits to a carrier's employees....

555 F.2d 1086.

For further information concerning the district court decision in Reed v. Wiser, see the 1976 Digest, Ch. 8, § 4, p. 406.

$5

Domestic Law and Regulation

Supersonic Transport

In British Airways Bd. v. Port Authority of New York, 558 F.2d 75 (1977), the U.S. Court of Appeals for the Second Circuit reversed

on June 14, 1977, the decision of the U.S. District Court for the Southern District of New York, which had granted summary judgment to the operators of the supersonic transport Concorde. The district court had declared invalid a resolution on March 11, 1977, of the Port Authority of New York and New Jersey denying the operators of the Concorde permission to engage in flights to and from John F. Kennedy (JFK) International Airport upon a finding that the "Secretary of Transportation, in ordering a 16-month operational test of the Concorde, had preempted the Authority's power to abate, through its temporary ban, the noise generated by the Concorde during landings and take-offs." Id. 78. The court of appeals, in an opinion by Chief Judge Irving F. Kaufman, disagreed with the district court in part upon a finding that Congress "provided for the promulgation by airport proprietors of reasonable regulations to establish acceptable noise levels for the airfield and its environs." Id. The court of appeals remanded the case "for an evidentiary hearing on the reasonableness of the Port Authority's 13-month ban...." Id.

The operators of the Concorde, the British Airways Board and Compagnie Nationale Air France, alleged that their supersonic jet airliner could meet the 112 PNdB (perceived noise in decibels) standard that the Port Authority applies to other aircraft at JFK and sought permission to land pursuant to an order of the Secretary of Transportation, William T. Coleman, permitting the Concorde to begin commercial operation. In February 1976, Secretary Coleman had ordered the Federal Aviation Administration to permit provisionally both of these carriers to fly two Concorde flights daily into JFK as well as one flight each day into Dulles International Airport near Washington, D.C. Secretary Coleman's order, which contained a detailed scheme to regulate the Concorde's noise, was designed to permit a testing period prior to a final decision on the acceptability of the aircraft.

Secretary Coleman's decision went into immediate effect at Dulles, which is operated by the Federal Aviation Administration, but on March 11, 1976, the Port Authority banned the Concorde from JFK pending a six-month study of the aircraft's operating experience at Dulles and at Charles deGaulle and Heathrow Airports in France and the United Kingdom, respectively. The Port Authority ban on the Concorde was not based on its 112 PNdB rule but rather on questions regarding the adequacy of this rule to the low frequency sound generated by supersonic aircraft. At the time of the court of appeals' decision, some 13 months later, the Port Authority had not concluded its inquiry into these questions.

Excerpts from the court of appeals' opinion follow :

Air France and British Airways commenced this action to enjoin the Port Authority ban on March 17, 1976. The airlines urge that the Authority's action violates U.S. treaty commitments, interferes with the foreign affairs power of the Federal Government, and is preempted by Secretary Coleman's authorization of Concorde landings at JFK and provision of detailed regulations for noise control at the airport

In response to our request, the United States filed an amicus brief in which it urged that Secretary Coleman's order was never intended to deprive the Port Authority of the right to condition utilization of the facilities at JFK on the Concorde's compliance with reasonable noise regulations. The Government, indeed, went further, and denied that existing legislation authorized the Executive under any circumstances to preempt airport proprietors from promulgating their own noise regulations.

This conclusive statement of the United States position confirms our independent assessment of the public record . . .

Thus, although the Federal Aviation Act was amended in 1968 to stimulate the national effort to reduce excessive aircraft noise by requiring the Administrator to "prescribe . . . such [rules and] regulations as [he] may find necessary to provide for the control and abatement of aircraft noise...." 49 U.S.C. 1431 (b) (1), the legislative history clearly states that the statute was merely intended to strengthen the FAA's regulatory role within the area already totally preempted-control of flights through navigable airspace. The Senate Report accordingly concludes that

[the] proposed legislation will not affect the rights of a State or local public agency, as the proprietor of an airport, from issuing regulations or establishing requirements as to the permissible level of noise which can be created by aircraft using the airport. Airport owners acting as proprietors can presently deny the use of their airports to aircraft on the basis of noise considerations so long as such exclusion is nondiscriminatory.

S. Rep. No. 1353, 90th Cong., 2d Sess. 7 (1968), U.S. Code Cong. & Admin. News 1968, pp. 2688, 2694 (citing letter of Secretary, Department of Transportation)..

...

We believe the scope of the Port Authority's power as an airport proprietor to impose use restrictions based on noise considerations is defined by the limited role Congress reserved for it. . . . The proper domain of the operator is the "issu[ance of regulations] or establish [ment of requirements] as to the permissible level of noise which can be created by aircraft using the airport." S. Rep. No. 1353, supra at 6, U.S. Code Cong. & Admin. News 1968, p. 2694. It is clear to us that the Port Authority is vested only with the power to promulgate reasonable, nonarbitrary and non-discriminatory_regulations that establish acceptable noise levels for the airport and its immediate environs. Any other conduct by an airport proprietor would frustrate the statutory scheme and unconstitutionally burden the commerce Congress sought to foster.

. . Our conclusion that the Port Authority may ban supersonic aircraft only pursuant to reasonable noise regulations is further supported by a consideration of United States treaty obligations. In his prescient opinion, Secretary Coleman warned that "total ban of the Concorde at this time, without giving it any chance to prove itself, would conceivably be attacked as discriminatory." Decision at 11-12. Of course, all agree that equal, nondiscriminatory treatment of domestic and foreign air commerce is the touchstone of the complex network of agreements regulating international aeronautical traffic of which the United States is a major beneficiary. The bilateral compacts between this