RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0201p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

J ANE D OE ; J OHN D OE , husband and wife, Plaintiffs-Appellants ,

v

.

E TIHAD A IRWAYS , P.J.S.C., Defendant-Appellee

. ┐ │ │ │ │ │ │ │ ┘ No. 16-1042

Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor. No. 5:13-cv-14358—John Corbett O’Meara, District Judge. Argued: October 19, 2016
Decided and Filed: August 30, 2017
Before: BOGGS, SUHRHEINRICH , and McKEAGUE, Circuit Judges.

_________________ COUNSEL

ARGUED: Mark Kelley Schwartz, DRIGGERS, SCHULTZ & HERBST, P.C., Troy, Michigan, for Appellants. Andrew J. Haraka s, CLYDE & CO US LLP, New York, New York, for Appellee. ON BRIEF: Mark Kelley Schwartz, DRIGGERS, SCHULTZ & HERBST, P.C., Troy, Michigan, for Appellants. Andrew J. Hara kas, Daniel E. Corre ll, CLYDE & CO US LLP, New York, New York, Scott R. Torpey, JA FFE RAITT HEUER & WE ISS, Southfield, Michigan, for Appellee.

_________________ OPINION

_________________ BOGGS, Circuit Judge. Plaintiff Jane Doe a nd her eleven-year-old daughter flew aboard Etihad Airways from Abu Dhabi to Chicago. Fo r the duration of the fourteen-hour journey, 

### >No. 16-1042 Doe, et al. v. Etihad Airways Page 2

Doe’s tray table remained open in her lap becaus e a knob that was meant to hold it in place had fallen to the floor. During the flight, Doe’s dau ghter found the knob on the floor and gave it to Doe, who placed it in a seatback pocket. When it came time to descend, an Etihad flight attendant (unaware of the detached knob) gave Doe the familiar reminder to place her tray table in the upright and locked positi on for landing. Doe, of course, could not comply. To aid in explaining her problem, she reached into the se atback pocket to retrieve the fallen knob. But when she stuck her hand into the pocket, she was unexpectedly pricked by a hypodermic needle that lay hidden within. She gasped, and the needle drew blood from her finger.
Doe claims damages from Etihad for both her physical injury and her “mental distress, shock, mortification, sickness and illness, outra ge and embarrassment from natural sequela of possible exposure to” various di seases. Her husband claims loss of consortium. The Montreal Convention of 1999, an internatio nal treaty under which these cl aims arise, imposes strict liability (up to a monetary cap) upon Etihad “for damage sustained in case of death or bodily injury of a passenger upon condition only that th e accident which caused the death or injury took place on board the aircraft.” Etih ad concedes that an accident onboard its aircraft caused Doe to suffer a bodily injury. But Etihad argues that “d amage sustained in case of . . . bodily injury” means only “damage caused by bodily injury,” and thus does not include Do e’s fear of contagion
and other emotional-distress and mental-anguish damages—damages that Etihad claims were
caused not by Doe’s bodily injury (the small hole in her finger) but by the nature of the instrumentality of that injury (the needle). The distri ct court agreed and granted partial summary judgment for Etihad. But the district court e rred both in reading the additional “caused by” requirement into the treaty and in concluding thatDoe’s bodily injury didn’t cause her emotional and mental injuries. The plain text of the Montreal Convention allows Doe to recover all her “damage sustained” from the incident, which includes damages for both physical injury and accompanying emotional or mental harm. So, for the reasons that follow, we reverse and
remand.

I
When Doe was pricked by the needle, the passenge r seated in the aisle seat to her right heard Doe exclaim, “ouch,” and saw her finger bl eeding. The Etihad fli ght attendant who hadNo. 16-1042 Doe, et al. v. Etihad Airways Page 3

come to Doe’s seat picked up the needle and wh at was later determined to be its accompanying insulin syringe, both of which Doe had placed on he r tray table. But the flight attendant then returned the items to the tray table and left to summon the assistance of her supervisor. Because the airplane had begun its descent, the flight attendants did not ha ve access to the flight deck, which was where the only onboard sharps box wa s located, nor were the flight attendants permitted to call the flight deck absent a more pressing emergency.
The flight attendant returned with her supervisor. The flight attendant took the needle and syringe, placed them in an empty water bottl e, capped the bottle, and later turned the bottle over to her cabin manager. The supervisor, m eanwhile, gave Doe an antiseptic wipe, which Doe used to wipe her finger, and a Band-Aid, wh ich the supervisor himself wrapped around her finger. The cabin manager wrote a report of the in cident and told Doe thatEtihad would contact her. A flight attendant recommended that Do e see a doctor, but Etihad provided no medical assistance other than the antiseptic wipe and Band-Aid.
The next day, Doe saw a family physician, who noted a “small n eedle poke” on Doe’s finger. Doe was prescribed medication for possibl e exposure to hepatitis, tetanus, and HIV, and she underwent several rounds of testing over the follo wing year. Thankfully for Doe, all the tests came back negative. Nevertheless, Doe claims th at she refrained from sexual intercourse with her husband and from sharing food with her daught er until one year after the incident, when her
doctor told her that she could be certain that she had not contracted a disease from the
needlestick.
Two days after the flight, Doe sent an ema il to Etihad to follow up because Etihad had neither sent her a copy of the in cident report nor offered her a ny further assistance. One week later, Etihad replied by email to offer a “purely goodwill gesture” of “possible reimbursement” of Doe’s medical expenses, “w ithout any admission of liability.” This litigation followed.No. 16-1042 Doe, et al. v. Etihad Airways Page 4

II
Plaintiffs filed suit against Etihad in the United States District Court for the Eastern District of Michigan. 1 Etihad, an entity wholly owned by the Government of Abu Dhabi, United Arab Emirates, is a “foreign state” within the mean ing of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1603(a). But as a condition of Etihad’s Foreign Air Carrier Permit—issued by the United States Department of Transportation to permit Etihad to fly to United States airports— Etihad waived sovereign immunity from suit in United States courts and could thus be sued “in any judicial district in which [Etihad] is li censed to do business or is doing business,” which includes the Eastern District of Michigan beca use of Etihad’s codeshare and other business agreements with airlines operating from points within that di strict. 28 U.S.C. § 1391(f); see 49 U.S.C. § 41301. 2

Following discovery, Etihad moved for, and th e district court granted, partial summary judgment in favor of Etihad as to Doe’s clai ms for mental-anguish and emotional-distress damages, including fear of contagion. (For simp licity, we will refer to these various claims collectively as Doe’s claims for mental anguish. 3 ) The partial-summary-judgment order also
dismissed Doe’s husband’s derivative claim for lo ss of consortium. Do e declined to pursue a lost-earnings claim that she had pleaded in her complaint, leavi ng only her claim for the physical pain, suffering, and medical expenses caused by the needlestick, which the pa rties stipulated to
be de minimis relative to the dismissed claims. (These de minimis damages include the physical pain and suffering from being pricked by the needle: the small hole in Doe’s finger and the “ouch,” so to speak. But they do not include any me ntal anguish arising from the fact that it was

1 At first blush, the Eastern District of Michigan seems an unlikely venue for this action. Plaintiffs reside in Grand Rapids, in the Western District of Michigan, and no pa rt of Plaintiffs’ itinerary included travel to points in the Eastern District of Michigan. But Plaintiffs’ counsel is ba sed in Oakland County, Michigan (in the Eastern District), and, as we discuss in this paragraph, venue was proper in the Eastern District of Michiganbecause of Etihad’s status as a “foreign state.”
2 Etihad’s status as a foreign state also entitles it by statute to a bench trial rather than a jury trial. See 28 U.S.C. § 1441(d).
3 Mental anguish and emotional distress are distinct harms under Michigan damages laws. See, e.g. , McClain v. Univ. of Mich. Bd. of Regents , 665 N.W.2d 484, 488 (Mich. App. 2003) (per curiam). But this distinction does not affect the determination of whether Etihad may be subject to liability for such harms under the Montreal Convention; the distinction matters, if at all, only in our discussion of the measure of damages in Section IV, infra

.No. 16-1042 Doe, et al. v. Etihad Airways Page 5

a stray needle and not, for example, a sterilized toothpi ck, that pricked Doe’s finger. The logic
behind this distinction is that if something like a sterilized t oothpick had caused Doe’s bodily injury, then Doe would not have had any reas onable fear of contagion, so Doe’s fear of contagion must arise from the fact that it was a needle that caused her injury, rather than arising from the injury itself, and Doe’ s fear of contagion is theref ore not recoverable as “damage sustained in case of bodily injury” under the Montreal Convention. This logic is faulty, of course, because Doe’s injury was an injury caused by a needle and was not the same as the injury that a sterilized toothpick would have caused, even if arguably similar. We will discuss this more fully in Section III.A, infra .) The parties reached a settlement as to these de minimis damages, and the parties agreed to a “Stipulation and Order of Dismissal with Prejudice,” so that Plaintiffs could immediately ap peal the district court’s part ial-summary-judgment order.

We first discuss, in Section III, whether the district court erred in holding that Doe’s mental-anguish damages were not recoverable unde r Article 17(1) of the Montreal Convention, and—after analyzing both the pl ain text of the treaty and rele vant persuasive authorities—we
conclude that the district court did so err. Then, in Section IV , because the Montreal Convention provides rules for liability but looks to local law for the measure of damages, we conduct a choice-of-law analysis and hold that Michig an damages law governs both the amount of any damages Etihad comes to owe Doe and the ab ility of Doe’s husband to recover loss-ofconsortium damages.

III
The parties agree that Article 17(1) of the Montreal Conven tion, a multilateral treaty to which the United States is a signatory, provides Plaintiffs’ only avenue for recovery against
Etihad. See Convention for the Unification of Certain Rules for International Carriage by Air, art. 17, May 28, 1999, S. Treaty Doc. 106-45, ICAO Doc. No. 9740, 1999 WL 33292734 (entered into force Nov. 4, 2003) (Montreal Convention). More than 125 countries, including the United Arab Emirates, have signed, ratified, or acceded to the Montre al Convention since 1999.
The interpretation of a treaty is a ques tion of law that we review de novo. United States v. Page , 232 F.3d 536, 540 (6th Cir. 2000). Under the Supremacy Clause, treaties are “theNo. 16-1042 Doe, et al. v. Etihad Airways Page 6

supreme Law of the Land.” U.S. Const. art. VI , cl. 2. Neither our cour t nor the Supreme Court has yet interpreted any provision of the Montre al Convention. The Warsaw Convention (the Montreal Convention’s longstanding predecessor tr eaty), however, has been the subject of much litigation over the past eighty ye ars, and interpretations of the Warsaw Convention have at least some persuasive value in interpreting para llel provisions of th e Montreal Convention. 4 See
Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. 876, 137 L.N.T.S. 11 (Warsaw Convention); In re Air Crash at Lexington, Ky. , 501 F. Supp. 2d 902, 907–08 (E.D. Ky. 2007) ( noting that “the ‘common law’ of the Warsaw jurisprudence is v itally important to understanding the meaning of the Montreal Convention”) (quoting Baah v. Virgin Atl. Airways , 473 F. Supp. 2d 591, 596 n.7 (S.D.N.Y. 2007)); see also, e.g. , Zicherman v. Korean Air Lines Co. , 516 U.S. 217 (1996) (interpreting Warsaw Convention Article 17), Eastern Airlines, Inc. v. Floyd , 499 U.S. 530 (1991) (same), Air
France v. Saks , 470 U.S. 392 (1985) (same). As with the Montreal Convention, the Warsaw Convention provided international air passengers’ exclusive remedy for claims governed by that treaty. See, e.g. , El Al Isr. Airlines, Ltd. v. Tsui Yuan Tseng , 525 U.S. 155, 168–69 (1999) (holding that the Warsaw Convention provided the sole remedy for personal-injury claims arising from injuries sustained during internationa l air travel, even if the injured party could not
state a claim for relief under the Warsaw Conve ntion, in which case no remedy was available at all).
A. Textual Analysis
Our analysis of Article 17(1) of the Montreal Convention “must begin . . . with the text of the treaty and the context in which [its] written words are used.” Saks , 470 U.S. at 397 (citing
Maximov v. United States , 373 U.S. 49, 53–54 (1963)). The text of Article 17(1) provides:
The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury

4 The Warsaw Convention continues to govern disputes involving parties from countries that are signatories to the Warsaw Convention but not signatories to the Montreal Convention. Russia, for example, is a party to the Warsaw Convention and did not ratify the Montreal Convention until 2017, so the Warsaw Convention would govern claims against Russian airlines arising from incidents that occurred prior to Russia’s ratification of the Montreal Convention.No. 16-1042 Doe, et al. v. Etihad Airways Page 7

took place on board the aircra ft or in the course of any of the operations of embarking or disembarking.
Montreal Convention art. 17(1).
1. Etihad’s Argument
The contested language here is “in case of.” Etihad’s argument has two components: its understanding of what “in case of” means, and its application of that understanding to the facts
of this case.
First, Etihad argues that “in case of” means “caused by,” Appellee’s Br. 4, or perhaps “caused directly by,” see id. at 21. If we impose Etihad’s re ading of Article 17(1) back onto the text of the treaty, Etihad is then “liable for dama ge sustained [caused directly by] death or bodily injury of a passenger upon condition only that th e accident which caused the death or injury took place on board the aircraft . . . .” Thus, according to Etihad, in order for Doe to recover for her mental anguish under Article 17(1) , Doe would have to prove that(1) an “accident” caused her “bodily injury” on board an aircraft and (2) her “bodily injury” (i.e . the small hole in her finger) directly caused her “damage sustaine d” (i.e., her mental anguish).

Second, Etihad concedes that an accident caused Doe to suffer a bodily injury on board its aircraft, but Etihad argues that Doe’s bodily injury did not directly cause her mental anguish: according to Etihad, Doe’s anguish was caused notby her “bodily injury” (i.e., the needlestick, 5 the physical puncture wound) but rather by the “accident ” that caused the injury (i.e., being stuck by a needle, as opposed to being stuck by something else). Order Granting Def.’s Mot. for Partial Summ. J. 4 (emphasis added) (citations omitted) (“Plaintiff’s mental distress damages were not caused by her physical in jury. It is not the physical n eedle prick itself that caused Plaintiff’s distress, but the possibi lity that she may have been expos ed to an infec tious disease.”);

see Appellee’s Br. 17 (“[Doe’s] mental anguish da mages arise from the nature of the accident itself and were not caused by the bodily injury”), id. at 20 (“because the plaintiffs’ mental

5 The Oxford English Dicti onary defines “needlestick” as “an accidental stab wound produced by a hypodermic or surgical needle, esp. as a risk factor for the tr ansmission of blood-borne diseases to health-care workers.” Needle , Oxford English Dictionary, http://www.oed.com/v iew/Entry/125771 (last visited Aug. 29, 2017).No. 16-1042 Doe, et al. v. Etihad Airways Page 8

injuries were caused by the ‘accident’ itself and not the ‘bodily injuries’ sustained in the accident, there could be no recovery under the Convention”).
A simple diagram helps to illustrate Etihad’s curious understanding: 

### Bodily Injury Mental Anguish [i.e., the small puncture ( compensable only if it is wound in Doe’s finger] caused by the bodily injury) ( compensable ) 

### ACCIDENT [i.e., being pricked by a needle]



### Mental Anguish ( not compensable , even though it is caused by the same accident that caused the bodily injury)

As this diagram indicates, according to Etihad, mental anguish caused directly by the bodily injury is recoverable, but mental anguish that merely accompanies the bodily injury, and which is instead caused more generally by the accident , is not recoverable.
2. Plain Meaning of the Text
But “in case of” does not mean “caused by.”
Rather, the plain meaning of “in case of” is “if there is” or “in the event of” or “during a case in which there is.” The Oxford English Di ctionary, for example, defines “in case” (as a conjunction) as, “In the event tha t; if it should happen that; if,” and defines “in case of” (as an adverb) as “in the event of (esp. some thing untoward). Now frequently in in case of emergency .”
In case , Oxford English Dictionary, http://www .oed.com/view/Entry/426263 (last visited Aug. 29, 2017). The Canadian Oxford Dictionary has similar definitions and is a seemingly apt dictionary for identifying the contemporaneous meaning of terms in the Montreal Convention, given that the dictionary was first publ ished in 1998 and then updated in 2004,No. 16-1042 Doe, et al. v. Etihad Airways Page 9

while the treaty was signed in 1999 (in Canada) and entered into force in 2003.
See Case , The Canadian Oxford Dictionary (2d ed. 2004), http://www.oxfordreference.com/view/10.1093/acref/9780195418163.001.0001/m_en_ca001103 0?rskey=8fa6U0&result=11001 (defining “in case” as “in the event that; if,” and defining “in case of” as “in the event of”).
Clearly, the plain meani ng of “in case of” is conditional , not causal . To say in case of X,
do Y is to say “if X happens, then do Y”—none of which means that there is a causal relationship between X and Y—just as to say in case of a compensable bodily injury, the passenger may recover damage sustained is to say “if there is a compensable bodily injury, the passenger may recover damage sustained.” But to adopt Etihad’s meaning of “i n case of,” we would impose an
additional causal restriction ont o the text of Article 17(1) that the plain text does not contemplate. Indeed, imposing such an additional causal restriction would contradict the plain text, which states that “[t]he carrier is liab le for damage sustained in case of . . . bodily injury . . . upon condition only that the accident which caused the death or bodily injury took place on board the aircraft or [while] embarki ng or disembarking.” Montreal Convention art. 17(1) (emphasis added).
The phrase “upon condition only” is new to th e Montreal Convention—it is not found in the Warsaw Convention (either in Englis h or in the official French version) 6 —and it makes clear

6 The official text of Article 17 of the Warsaw Convention provides in full: Le transporteur est responsable du dommage survenu en cas de mort, de blessure ou de toute autre lésion corporelle subie par un voyageur lorsque l’ accident qui a causé le dommage s’est produit à bord de l’aéronef ou au cours de toutes opérations d’embarquement et de débarquement.
Warsaw Convention art. 17. Only the French text of the Warsaw Convention is authoritative, but the United States Supreme Court has employed as persuasive authority an official English translation of that text, which was presented to the United States Senate when it consented to ratify the Warsaw Convention in 1934, and which provides: The carrier shall be liable for damage sustaine d 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. 3014; see Olympic Airways v. Husain , 540 U.S. 644, 649 n.4 (2004); Saks , 470 U.S. at 397. For the most part, the language of the Warsaw Convention’s Article 17 is the same as the language of the Montreal Convention’s Article 17(1). Notably, the “in case of” language inthe Montreal Convention replaced “en cas de” from the Warsaw Convention, whic h was translated from the French in the above translation as “in the eventNo. 16-1042 Doe, et al. v. Etihad Airways Page 10

that the passenger’s recovery is conditioned only on the occurrence of an accident that causes death or bodily injury either on board the aircraft or during boa rding or deplaning. Surely, the
drafters of the Montreal Convention could have used a word or phrase with causal meaning instead of “in case of” if they wanted to impose such a causal restriction on the kinds of “damage
sustained” that are recoverable when an accident on board an aircraft causes a passenger to incur a bodily injury. Indeed, the drafters did impose such a causal requirement in stating that the accident must have “caused” the death or bodily in jury. The drafters’ use of “caused” to express that an accident must have caused the bodily injury thus provides additional support for our conclusion that the drafters did not, in th e very same sentence, use “in case of” also to mean “caused by.”
3. The Underpinnings of Etihad’s Argument
Admittedly, in light of the foregoing discus sion, Etihad’s position—that “in case of” does mean “caused by”—may seem absurd. But it is not, and that is because Etihad’s argument is
rooted in a Warsaw Convention de cision of the Second Circuit C ourt of Appeals in which that
court held that American Airlines was not liable under the Warsaw Convention “for mental injuries that were not caused by physical injuries.” Ehrlich v. Am. Airlines, Inc. , 360 F.3d 366, 368 (2d Cir. 2004) (emphasis added) . Etihad asks us to adopt the Second Circuit’s Warsaw
Convention decision in Ehrlich to decide the Montreal Conven tion case before us. But the Montreal Convention is a new treaty that we interp ret as a matter of first impression, and there is no legal authority that w ould require us to import Ehrlich ’s Warsaw Convention determination to govern this Montreal Convention claim.

In Ehrlich , an American Eagle 7 aircraft overshot its desi gnated runway upon landing at New York’s JFK International Airport. An arrest or bed—a bed of material made of water, foam, and cement that crushes under the weight of an airplane, increasing drag and helping bring the airplane to a stop—saved the plane from plungi ng into the waters of Thurston Bay, which lay

of.” And, as discussed above, the “upon condition only” language in the Montreal Convention was new: it replaced “lorsque” from the Warsaw Convention, which was translat ed from the French in the above translation as “if.”
7 American Eagle is a brand name under which various regional air carriers operate flights on behalf of American Airlines.No. 16-1042 Doe, et al. v. Etihad Airways Page 11

200 feet beyond where the plane came to a halt. To ev acuate the aircraft, passengers had to jump six to eight feet from its doorway. Ibid.
Gary and Maryanne Ehrlich were passengers on the flight. They contended that they suffered bodily injuries (neck, back, shoulder, hi p, and knee injuries; hypertension; and a heart problem) during the abnormal landing and subseque nt evacuation. They also alleged mental injuries including a fear of flying, nightmares, a nd trouble sleeping. The district court granted partial summary judgment for the airline defendant as to the mental injuries on the basis that “a plaintiff may only recove r for emotional damages caused by physical injuries.” Id. at 369 (quoting Ehrlich v. Am. Airlines , 99-CV-6013, 2002 U.S. Dist. LEX IS 21419, at *10 (E.D.N.Y. June 21, 2002) (emphasis added)). The Second Circ uit affirmed, noting that “the Ehrlichs had offered no evidence demonstrating a causal c onnection between their mental and physical injuries.” Ehrlich , 360 F.3d at 369. 8

8 A footnote in Ehrlich clarifies that the sole dispute between th e Ehrlichs and the airline was whether the airline was liable for mental anguish that only accompanies bodily injury and is not caused by bodily injury—the Ehrlichs did not argue, as Doe does here, that their bodily injuries in fact caused their mental injuries: For the purposes of this appeal, American Eagle does not dispute that the Ehrlichs allegedly sustained mental and bodily inju ries which were caused by an accident that took place on board its aircraft or during the evacuation therefrom. More over, on appeal, the Ehr lichs do not challenge the district court’s conclusion that they failed to raise “a genuine issue of fact regarding a causal connection between their alleged bodily in juries and their mental suffering.” See Ehrlich , 2002 U.S. Dist. LEXIS 21419, at *11. Instead, their appeal focuses on whether the court properly construed Article 17. Accordingly, we need not address whether an accident caused the Ehrlichs to suffer injuries on board an aircraft or in the course of any of the operations of disembarking; we also need not address wh ether the Ehrlichs’ alleged physical injuries caused their alleged mental injuries. Ehrlich , 360 F.3d at 374 n.8. It is worth reiterating that in the present case, Doe’ s mental anguish is traceable to her bodily injury, whereas in Ehrlich , it is easier to comprehend the airline’s argument that the Ehrlichs’ bodily injuries did not cause their mental injuries. There, the Ehrlichs’ alleged mental in juries of fear of flying and sleeplessness could have been caused by the emergency landing (and not by the bodily injuries sustained du ring the evacuation). The “accident,” then could be understood as the emergency landing, which (because it resulted in the evacu ation) caused the bodily injuries sustained in the evacuation, and which separately caused mental injuries that the Ehrlichs would have sustained regardless of whether they sustained any bodily inju ries at all. Of course, it is also possible that the Ehrlichs’ mental injuries caused by the emergency landing were exacerbated by the evacuation (or indeed, exacerbated by the bodily injuries they sustained during the evacuation)—but b ecause the Ehrlichs did not argue that their bodily injuries caused their mental injuries, the Se cond Circuit was presented with a record on which it was easier than it is in our case to view the claimed mental injuries as being “cause d by the accident” rather than “caused by the bodily injury.”No. 16-1042 Doe, et al. v. Etihad Airways Page 12

Ehrlich reached its conclusion only af ter grappling at length with the original French text of the Warsaw Convention, finding it ambiguous as to whether it held airlines liable for mental injuries that are not caused by a compensable bodily injury, and inquiring into the original purpose of the Warsaw Convention when it was signed in 1929. Indeed, Ehrlich discussed the
Montreal Convention as well: the Montreal Conven tion was signed just week s after the Ehrlichs’ emergency landing, and the Montreal Convention entered into force after the Second Circuit heard argument in Ehrlich but before it issued its opinion. See id. at 372. But Ehrlich expressly rejected the argument that the Montreal Conven tion had any retroactive applicability to the Ehrlichs’ claim, and the Second Circuit based its decision entirely on it s interpretation of the
Warsaw Convention. See id. at 373 (“neither the Montreal Convention nor the intentions of its drafters govern this appeal”). 9

In reaching its conclusion, Ehrlich followed the lead of Jack v. Trans World Airlines , 854 F. Supp. 654, 663–68 (N.D. Cal. 1994), a district -court decision that also concluded that “only emotional distress flowing from the bodily injury is recoverable” under Article 17 of the
Warsaw Convention. Id. at 665 (emphasis added). Jack expressly acknowledge d (after rejecting other possible interpretations of the Warsaw C onvention) that its interpretation “does read a causal component into the phrase ‘damage sustai ned in the event of,’” but nevertheless went ahead with such an interpretation because that interpretation was “not prohibited” by the United States Supreme Court’s Wars aw Convention precedents. Id. at 668.

But “to alter, amend, or add to any treaty, by inserting any cl ause, whether small or great, important or trivial, [is] an us urpation of power, and not an exer cise of judicial functions.” The
Amiable Isabella , 19 U.S. (6 Wheat.) 1, 71 (1821) (hol ding that the 1795 U.S.–Spain Treaty for safe passage of ships did not protect a Spanish claimant from United St ates condemnation of a schooner during the War of 1812 when the requis ite passport mandated by the treaty was not affixed to the vessel). Both Ehrlich and Jack interpolated a causal component into the Warsaw Convention that was not required by the text, an d both did so expressly to serve the Warsaw

9 Moreover, because the Montreal Conventi on was signed well before the litigation in Ehrlich began, there is no reason to suppose that the drafters of or parties to the Montreal Convention took Ehrlich to be a legal precedent that would aid signatories in future analysis of the text of Article 17(1) of the Montreal Convention.No. 16-1042 Doe, et al. v. Etihad Airways Page 13

Convention’s purpose of “limiting the liability of air carriers in order to fost er the growth of the fledgling commercial av iation industry.” Ehrlich , 360 F.3d at 385 (quoting Floyd , 499 U.S. at 546); see also Jack , 854 F. Supp. at 662, 665 (“such an appro ach furthers the pro-airline industry goals of the Warsaw Convention becau se it is so restrictive of pa ssengers’ rights”). To be sure,
both Ehrlich and Jack found ambiguity in the original Fren ch text of the Warsaw Convention before inquiring into the purpose of that treaty and seeking to give effect to that purpose. But
what that should mean for us is not , as Etihad would have it, that we should blindly adopt
Ehrlich as the law of our circuit for claims under Article 17(1) of the Montreal Convention, but rather that we should grapple with the text of the Montreal Convention itself, and then, to the extent that we find any ambigu ity therein, look to relevant persuasive authority—which may include evidence of the purpose of the Montreal Convention, but almost certainly not the nearly century-old purpose of the Warsaw Convention—to assist us in resolving that ambiguity.

Ehrlich recognized that “the Montreal Conventi on is an entirely new treaty that unifies and replaces the system of liability that derives from the Warsaw Convention.” Ehrlich , 360 F.3d at 371 n.4. So do we. The Montreal Convention was signed in 1999, in six languages including English, and we are charged with interp reting that English text in the first instance rather than clinging to the Second Circuit’s purposivist interpretation of a French-language predecessor treaty signed in 1929. In Sections III.B through III.E, infra , to fortify our textual analysis of Article 17(1), we will discuss more fu lly the relative purposes of the Warsaw and the Montreal Conventions, and we wi ll address relevant decisions of the United States Supreme Court and other courts, which provide useful context for both Ehrlich and our decision here. But for now, it suffices to say that Ehrlich and Jack do not provide insight into meaning of the plain

text of Article 17(1) of th e Montreal Convention.No. 16-1042 Doe, et al. v. Etihad Airways Page 14

4. Our Textual Interpretation

Here, then, is a fairer illustration of what damages are recoverable under Article 17(1) according to the plain text of the Montreal Convention:



### Bodily Injury Mental Anguish

[i.e., the small puncture ( compensable ) wound in Doe’s finger] ( compensable ) 

### ACCIDENT 10 [i.e., being pricked by a needle] 

### Mental Anguish ( also compensable , so long as it results from an accident that also causes bodily injury, even though the mental anguish might not flow from such bodily injury)

As this diagram makes clear, because an accide nt onboard Etihad’s aircraft caused Doe to suffer a bodily injury (a fact that Etihad con cedes), Doe may therefore recover damages for her mental anguish, regardless of whether that angu ish was caused directly by her bodily injury or more generally by the accident that caused the bod ily injury. That is b ecause, either way, Doe’s mental anguish is “damage sustained in case of”—i.e., “in the event of” a compensable bodily injury.
What the plain text of Article 17(1) also makes clear is that a passenger cannot recover damages for mental anguish if there is no requis ite accident or if the acc ident does not cause a bodily injury. For example, if ordinary turbul ence causes a passenger to suffer an anxiety attack,
the Montreal Convention would not allow the passenger to recover damages for the anxiety

10 The meaning of “accident” is not disputed here. The United States Supreme Court has consistently interpreted “accident” in Article 17 of the Warsaw Conve ntion to mean “an unexpect ed or unusual event or happening that is external to the passenger.” Saks , 470 U.S. at 405; see also Husain , 540 U.S. at 650. We will discuss Saks and Husain in context in Section III.C.1, infra

.No. 16-1042 Doe, et al. v. Etihad Airways Page 15

attack because ordinary turbulence is not an “accident.” Likewise, if there is an accident, such as an emergency landing, and a pa ssenger escapes physically unscathe d but mentally harmed, the passenger is barred from recove ring mental-anguish damages fo r want of the required bodily injury. This understanding is supported by the plain text of Article 17(1) of the Montreal Convention—and it also happens to have the advantage of being simpler than Ehrlich ’s approach.
Admittedly, however, the text of Article 17(1) is still not entirelyclear as to what connection must exist between the required bodily injury and claimed ment al anguish. The plain text of Article 17(1) is sufficient on its own to re ject Etihad’s interpretation of it. And the plain text of Article 17(1) allows our conclusion that when a single “accident” causes both bodily injury and mental anguish, that mental anguish is sustained “in case of” the bodily injury. But the plain text on its own does not necessarily require that a single accident cause both the required bodily injury and the claimed mental angui sh in order for that mental anguish to be “sustained in case of” the bodily inju ry, as our conclusion suggests.
What if, for example, there are two accident s: first, unusually rough turbulence (which causes a passenger mental anguishbut no bodily injury ), and second, an unrelated emergency landing, during which every passenger sustains at least some bodily injury. Does the bodily injury sustained in the emergency landing a llow the passenger who had previously suffered
severe emotional distress to recover for that distress? That is, is mental anguish from the first accident considered “damage sustained in case of bodily injury” because it was sustained during the same flight as the second acci dent, which caused bodily injury?

On the one hand, it seems reasonable to r ead the “in case of” language as precluding recovery of damages for mental anguish in th e example presented in the preceding paragraph, and our interpretation of Article 17(1) implicitly supports such a conclusion; but on the other hand, the text of the treaty does not explicitly prohibit such rec overy. So, both to bolster our conclusion that mental anguish is “sustained in case of” a bodily injury when it arises from the same accident that caused that bodily injury, and to reinforce the proposition that Ehrlich does not control this case, we review relevant persuasive authorities that provide insight into the meaning of Article 17(1) in the context of its ratification by its signatories. See, e.g. , Saks ,No. 16-1042 Doe, et al. v. Etihad Airways Page 16

470 U.S. at 396 (“[T]reaties are construed more liberally than private agreements, and to ascertain their meaning we may look beyond the written words to th e history of the treaty [and] the negotiations” that produced the treaty. (alteration in original) (quoting Choctaw Nation of
Indians v. United States , 318 U.S. 423, 431–32 (1943))). We therefore turn next to the history of the negotiations that culminated in the signing of the Montreal Convention and to evidence of the signatories’ purpose in ratifyi ng the Montreal Convention.
This historical inquiry is important because th e question before us is important. And the question before us is important for several reason s. First, Article 17(1) governs not only claims for needlesticks, snakebites, and the like, but also claims for injuries and fatalities sustained in plane crashes. Second, “uniformity is an important goal of tr eaty interpretation,” SanchezLlamas v. Oregon , 548 U.S. 331, 383 (2006), so we look to the history of the Montreal
Convention to ensure that the conclusion we dr aw today is consistent with how our sister signatories would understand the text of Artic le 17(1). Third, the Warsaw Convention’s analogue to the question before us was expressl y left unanswered by the United States Supreme
Court in Floyd when it ruled that mental injury standing alone was not recoverable under the
Warsaw Convention because of the absence of the required death or bodily injury:

We conclude that an air carrier cannot be held liabl e under Article 17 when an accident has not caused a passenger to su ffer death, physical injury, or physical manifestation of injury. Although Artic le 17 renders air carriers liable for “damage sustained in the event of” . . . su ch injuries, we express no view as to whether passengers can recover for ment al injuries that are accompanied by physical injuries. That issue is not presented here because respondents do not allege physical injury or physic al manifestation of injury.
Floyd , 499 U.S. at 552–53.
Fourth, although we have expended considerab le effort explaining that the Montreal Convention is a new treaty thatwe should interpret independen tly of the Wars aw Convention,
such that Ehrlich does not inform our decision here, there is nonetheless evidence that the
drafters of the Montreal Convention intended Arti cle 17(1) to be construed consistently with
well-settled Warsaw Conventio n precedents of the United States Supreme Court. See Explanatory Note to Montreal Conventi on, art. 17, S. Treaty Doc. 106-45, 1999 WL 33292734,No. 16-1042 Doe, et al. v. Etihad Airways Page 17

at *16 (2000). 11 These precedents, as we will discuss, include the United States Supreme Court’s decision defining “accident” (in Saks , a decision from 1985 that has gained global currency). But these precedents do not include Ehrlich , which was decided well after the Montreal Convention was signed (and which was not a decision of a signatory ’s highest court, in any event, see, e.g. , Husain , 540 U.S. at 655 n.9).
And finally, while Ehrlich was a Warsaw Convention d ecision, we recognize that our conclusion today is directly contrary to Ehrlich ’s conclusion as to a similarly worded provision. The history behind the Montreal Convention will make clear why the conclusion we reach today is correct, and why we cannot use the same lines of reasoning that Ehrlich and Jack used in reaching their holdings that denied recovery for mental injuries that accompanied but did not directly flow from a bodily injury.

11 This Explanatory Note, though not controlling, is nevertheless insightful in that it also indicates that the drafters of Article 17(1) did not aim to limit recovery for mental anguish to what would have been available under the Warsaw Convention. The Explanatory Note for Article 17(1) is provided here in full: Paragraph 1 provides for carrier liability for death or bodily injury of a passenger caused by an accident on board the aircraft or in the course of embarking or disembarking. The carrier’s limited defenses to liability are provided for else where in the Convention (i.e., Article 21, below). It is expected that this provision will be constr ued consistently with the precedent developed under the Warsaw Convention and its related instruments. Following extensive debate, the Conference d ecided not to include an express reference to recovery for mental injury, with the inten tion that the definition of “bodily injury” would continue to evolve from judicial precedent developed under Article 17 of the Warsaw Convention, which uses that term. See International Conference on Air Law, Vol I Minutes at p. 201 (Thirteenth Meeting, May 25, 1999, Summary of the Chairman of the Conference). The Conference adopted the following Statement, recorded in th e Minutes of the Proceedings: With reference to Article 16 [sic], para graph 1 of the Convention, the expression ‘bodily injury’ is included on the basis of the fact that in some States damages for mental injuries are recoverable under certain circumstances, that jurisprudence in this area is developing and that it is not intended to interfere with this development, having regard to jurisprudence in areas other than international carriage by air; .... International Conference on Air Law, Vol. I Minutes at pp. 242-43 (Plenary, Sixth Meeting, May 27, 1999). The reference in this statement to “jurisprudence in areas other than international carriage by air” reflects the concern of some States that jurisprudence under Article 17(1) of the Convention should not develop in a particular State beyond the then current jurisprudence of that State. Rather, that jurispruden ce should continue to develop in a manner consistent with, not ahead of, jurisprudence in ot her areas in such States. Explanatory Note to Montreal Convention, art. 17, S. Treaty Doc. 106-45, 1999 WL 33292734, at *16–17.No. 16-1042 Doe, et al. v. Etihad Airways Page 18

B. History and Purpose of the Montreal Convention
The Warsaw Convention was opened for signat ure in 1929, just two years after Charles Lindbergh famously flew his Spirit of St. Louis solo from New York to Paris, and eight years before Amelia Earhart disappeared over the Paci fic Ocean. The original parties to the Warsaw Convention had the “primary purpose of . . . limiting th e liability of air carrier s in order to foster the growth of the fledgling co mmercial aviation industry.” Floyd , 499 U.S. at 546 (citing Trans World Airlines, Inc. v. Franklin Mint Corp. , 466 U.S. 243, 256 (1984); Minutes, Second Int’l Conf. on Private Aeronautical Law, Octobe r 4–12, 1929, Warsaw 37 (R. Horner & D. Legrez trans. 1975) (“Warsaw Conference Mi nutes”); and Lowenf eld & Mendelsohn, The United States
and the Warsaw Convention , 80 Harv. L. Rev. 497, 498–99 (1967)).
The Warsaw Convention itself was the product of four years of work by a committee of experts that was appointed in 1925 atan international conference in Paris at which an early draft protocol was circulated. That draft protocol included an expansive liability provision, holding the carrier “liable for accidents, losses, breakdowns, and delays” without imposing any requirement of death or bodily injury. Ministère des Affa ires Étrangères, Conférence
Internationale de Droit Privé Aérien (27 Octobre–6 Novembre 1925) , 79 (1926), as translated in Floyd , 499 U.S. at 542.
By the time the conference in Warsaw began in 1929, the committee had divided the protocol on liability into three separate provision s (one for injury to passengers, one for damage to goods, and one for losses from delays). This te xt was then further developed in Warsaw until
the final version of the Warsaw Convention wa s agreed upon—with much narrower language in Article 17 for air carriers’ liability to injured passengers. See Warsaw Conference Minutes at 205–06; Floyd , 499 U.S. at 543. Moreover, unlike the M ontreal Convention’s strict-liability scheme, the Warsaw Convention imposed a cap on damages at 125,000 gold French francs (at the time, approximately $8,300) per passenger, which carriers could reduce to zero upon showing that they had exercised due care by taki ng “all necessary measures to avoid the damage or that it was impossible” to do so. The cap on damages was lif ted (so as to allow potentially unlimited liability) only if the carrier’s “willful misconduct” caus ed the injury or death. Warsaw Convention arts. 17, 20, 22.No. 16-1042 Doe, et al. v. Etihad Airways Page 19

The United States Supreme Court has stated that “it is reasonable to infer that the Conference adopted the narrower language [in Ar ticle 17] to limit the types of recoverable injuries.” Floyd , 499 U.S. at 543. “Whatever may be the current view among Convention signatories, in 1929 the parties we re more concerned with protect ing air carriers and fostering a new industry rather than providing a fu ll recovery to injured passengers.” Id. at 546.

The Warsaw Convention entered into force in 1933, and the United States became a party to it in 1934. Paul S. Dempsey & Michael Milde, International Air Carrier Liability: The Montreal Convention of 1999 , 13 (McGill Univ. Centre for Research in Air & Space Law) (2005). The United States subsequently led various efforts to modernize it and raise its liability
limits. See Montreal Convention, 1999 WL 33292734, at *3–5 (Letter of Submittal from President Clinton to United States Senate) (“Lett er of Submittal”) (detai ling history of Warsaw Convention and proposed modifications). In th e early 1950s, the newly created International Civil Aviation Organization (ICAO) began evaluating a potential increase to the liability limits at
international conferences in Rio de Janeiro a nd The Hague. At The Hague, the United States proposed raising the personal-liability limits to approximately $25,000, but the majority of other participants resisted; the United States counte red with a reduced proposal of approximately $20,000, which was also met with disapproval. “I t was not until the United States began to threaten denunciation” that any agreement to increase the personal-liability limits was reached, and even then, the United States “succeeded on ly in doubling the original Warsaw Convention liability limit to $16,600,” in a proposed amendment to the Warsaw Convention known as the Hague Protocol. Dempsey & Milde, supra , at 19 n.51; Letter of Submittal, 1999 WL 33292734, at *3; see Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air, done at The Hague September 28, 1955. The United States, dissatisfied with the low liability limits , refused to ratify the Hague Protocol. 12

In 1965, in response to what some courts ha ve described as the “unconscionably low” liability limits under the Warsaw Convention, Dunn v. Trans World Airlines, Inc. , 589 F.2d 408, 411 (9th Cir. 1978), United States Secretary of State Dean Rusk gave Poland six months’ notice

12 In 2003, for reasons not germane to this opinion, th e United States finally did ratify the Hague Protocol, but by that time, the personal-liability limits had long been raised, as we are about to discuss.No. 16-1042 Doe, et al. v. Etihad Airways Page 20

that the United States intended to denounce the Warsaw Convention. Dempsey & Milde, supra , at 29 n.87 (citing Dep’t of State Press Release No. 268, 50 Dep’t of Stat e Bull. 923–24 (1965)). The notice included a proviso that the United Stat es would retract its notice of denunciation if personal-liability limits were raised to $75,000 to $100,000 per passenger.

As a result of this not ice, the ICAO held a conference in Montreal in 1966 at which the United States unsuccessfully sought to increase the personal-liability limits. The airlines themselves, however—including all ma jor air carriers that served th e United States—entered into a private intercarrier agreement (the Montreal Agreement) that made two broad changes to the Warsaw Convention’s limitations. First, the Montreal Agreement increased the personal-liability limit to $75,000 per passenger. Se cond, the Montreal Agreement im posed strict liability up to the $75,000 limit (while retaining the preexisting provision that allowed liability beyond that limit upon a showing of willful misconduct by the airline). CAB Order E-23680 (May 13, 1966), 31 Fed. Reg. 7,302 (May 19, 1966), reprinted at 49 U.S.C.A. § 15 02 (1970). The United
States retracted its notice of denunciation. Dempsey & Milde, supra , at 30. The Montreal Agreement remained in force among its signatories for approximately thirty years, and was applicable to all carriage to, from, or through the United States.
In the wake of the Montreal Agreement of 1966, various other international agreements were also reached to increase liability. In 1974, various European and Japa nese carriers agreed to increase passenger liability in an informal “Malta Agreement.” Id. at 31. In 1992, Japanese carriers agreed to strict liab ility for personal injury up to 100,000 Special Drawing Rights per

passenger. 13 And in 1995, a dozen airlines signed a “Washington Intercarrier Agreement,” endorsed by the International Ai r Transport Association, to whic h the United States Department of Transportation had given antitrust immunity to facilitate discussion of the modernization of international air-carrier liability. Id. at 33–34. This Washington Inte rcarrier Agreement, signed in Kuala Lumpur, imposed strict liab ility up to 100,000 SDRs per passenger and removed the “willful misconduct” provision for liability be yond the cap, replacing that provision with

13 The Special Drawing Right (SDR) “i s an artificial ‘basket’ currency developed by the International Monetary Fund.” Letter of Submittal, 1999 WL 33292734 at *4. On August 21, 2017, one SDR was worth approximately $1.42. Int’l Monetary Fund, SDR Valuation (Aug. 29, 2017), https://www.imf.org/external/np/fin/data/rms_sdrv.aspx.No. 16-1042 Doe, et al. v. Etihad Airways Page 21

something more like a negligence standard that imposes unlimited liability above the 100,000- SDR cap if the airline ca nnot prove that it took “all necessary m easures” to avoid the injury. The major United States-based airlines joined the Wa shington Intercarrier Agreement within a week of its initial signing in Kuala Lumpur. Ibid.
Also in the wake of the Montreal Agreemen t of 1966, aside from the private intercarrier agreements that were negotiated, the United States continued to seek amendments to the Warsaw Convention that would impose higher personal-liab ility limits. In 1971, the Guatemala City Protocol came close to achieving a limit of 1,500,000 gold francs (then equivalent to approximately $100,000) per passenger, but th at Protocol would have imposed an absolute limitation on liability, even in cases of willful misconduct. See id. at 22–26. The United States Senate refused to ratify the Guatemala City Protoc ol in part because it used the gold standard for liability limits and because it would have imposed an absolute, unbreakable limitation on liability. In 1975, various “Montreal Protocols” were proposed at a diplomatic conference as part of an initiative to replace the Warsaw Conve ntion’s gold standard with the SDR. But the only protocol that entered into force worldwide was Protocol No. 4, which affected only cargo liability and not persona l-injury liability. See id. at 26–29.
Against that backdrop, the Montreal Conventi on of 1999 was revolutionary: it replaced not only the Warsaw Convention but also “all of its related instruments and . . . eliminate[d] the need for the patchwork of regulation and privat e voluntary agreements” that then dominated the world’s air-carrier liability regime. Le tter of Submittal, 1999 WL 33292734, at *7. The Montreal Convention imposes strict liability fo r injuries that are compensable under Article 17(1), up to 100,000 SDRs per passenger, with a decennial adjustment for inflation. (The first official adjustment came in 2009, increasing the strict-liability limit to 113,100 SDRs—or approximately $160,000—per passenger. Montreal Convention arts. 21, 24; see Inflation Adjustments to Liability Limits Governed by the Montreal Convention Effective Dec. 30, 2009, 74 Fed. Reg. 59,017 (Nov. 16, 2009).) Above that stri ct-liability limit, a carrier remains liable for all damage sustained, with no limit, unless th e carrier can prove either that “such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents,” or that “such damage was solely due to the negligence or other wrongful act or omissionNo. 16-1042 Doe, et al. v. Etihad Airways Page 22

of a third party.” Montreal Convention art. 21. Finally, an exoneration provision allows a reduction in compensation for injuries caused by or contributed to by the plaintiff, in the same manner as a pure-comparative-negligence or pu re-comparative-fault scheme; this exoneration provision applies to all claimed damages including those falli ng under the strict-liability limit.
Montreal Convention art. 20. In short, the Montreal Convention replaced a “restrictive,” “proairline industry” regime, Jack , 854 F. Supp. at 662, 665, with “a tr eaty that favors passengers
rather than airlines.” Lexington , 501 F. Supp. 2d at 908 (quoting Ehrlich , 360 F.3d at 371 n.4 (describing Montreal Convention)). And it did so on terms that reflected decades of effort by the
United States to abolish the outdated limitations of the Warsaw Convention.
Moreover, by 1999, when the Montreal Conv ention was opened for signature, the aviation industry was anything but “fledgling,” and the purpose of the Montreal Convention was not to protect the aviation industr y, but rather to provi de a “modernized uniform liability regime for international air transportation.” Le tter of Submittal, 1999 WL 33292734, at *6.
In light of the great difference between th e purpose of the Warsaw Convention and the purpose of the Montreal Convention, then, it hard ly seems appropriate fo r us to look to the purpose of the Warsaw Convention, as Etihad woul d have us do in relying on Ehrlich , in order to arrive at a different conclusion from one compelle d by the plain text of th e Montreal Convention. Our Supreme Court’s Warsaw Convention jurispr udence has relied consiste ntly on analysis of the purpose of that treaty as it was implemented in 1929. See, e.g. , Zicherman , 516 U.S. at 221– 23; Saks , 470 U.S. at 400–05; Floyd , 499 U.S. at 546. What the historical record makes clear is that the considerations favoring a close textua l reading of the Montr eal Convention—a product
of at least five decades of international negotiations—far outweigh whatever considerations would weigh in favor of rewriti ng the text of the Montreal Conve ntion in order to accommodate
Ehrlich or effectuate the purpose of the Warsaw Convention, as Etihad would have us do.
C. Relevant Warsaw Convention Litigation
We turn next to (1) relevant decisions of our Supreme Court under the Warsaw Convention; (2) a brief summary of our reasons for rejecting Ehrlich in light of the foregoingNo. 16-1042 Doe, et al. v. Etihad Airways Page 23

discussion of the history and purpose of the Mont real Convention; and (3 ) a brief discussion of
relevant district-court cases.

1. United States Supreme Court Deci sions Under the Warsaw Convention
From 1984 to 2004, the United States Suprem e Court handed down a series of seven opinions clarifying various aspect s of the Warsaw Convention, mo st of which involved Article 17. The first of these, Trans World Airlines, Inc. v. Franklin Mint Corp. , 466 U.S. 243 (1984), upheld the Convention’s liability li mit for cargo and is not particul arly relevant to our case.
More relevant is the Court’s 1985 decision in Air France v. Saks , in which it held that “accident”
in Article 17 of the Warsaw Convention mean s “an unexpected or unusual event or happening that is external to the passenger.” Saks , 470 U.S. at 405 (denying passenger’s recovery for deafness caused by cabin depressurization wher e the depressurization was ordinary and the plaintiff was the only passenger on th e flight who was affected).
A year later, the Court decided Chan v. Korean Air Lines, Ltd. , 490 U.S. 122 (1989), holding that the Warsaw Convention’s limitations a pplied even if an airline defendant failed to provide notice of the Convention in at least 10-point type as the airline defe ndant agreed to in the Montreal Agreement of 1966. Chan , 490 U.S. at 135 (holding thatalthough Korean Air Lines had joined the Montreal Agreement in 1969 and ha d violated that agreement by providing notice of the Convention only in 8-point type, the Wa rsaw Convention’s limitations still applied because the Montreal Agreement did not impose any sanction at all for failure to provide notice in the required typeface, let alone the sanc tion of forfeiting liability limitations).

In 1991, the Court decided Eastern Airlines v. Floyd , which as we noted earlier held that “bodily injury” in Article 17 of the Warsaw Convention does not allow for th e recovery of mental injuries on their own (that is, with no physical injury incurred whatsoever), but which “express[ed] no view as to whether passengers can recover for mental injuries that are accompanied by physical injuries.” Floyd , 499 U.S. at 552. Next came Zicherman v. Korean Air
Lines in 1996, in which the Court held that alth ough the Warsaw Convention provided rules for liability and limitations of liability, it did not govern the measure (or calculation, so to speak) of damages, which was instead a matter to be determined in each case by applicable domestic law.No. 16-1042 Doe, et al. v. Etihad Airways Page 24

Zicherman , 516 U.S. at 225 (“[Q]uestions of who may recover, and what compensatory damages they may receive, . . . were unresolved by the C onvention and left to ‘private international
law’— i.e. , to the area of jurisprudence we call ‘conflict of laws,’ dealing with the application of varying domestic laws to disputes that have an interstate or inte rnational component.”).

In 1999, the Court decided El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng , in which it held that the Warsaw Convention provided the sole re medy for personal-injury claims arising from injuries sustained during international air travel, even if the injured party could not state a claim for relief under the Warsaw Convention, in whic h case no remedy was available at all. Tseng , 525 U.S. at 161 (alleged assault by El Al agents during preflight securitysearch that did not result in bodily injury was not an “accide nt” and was not compensable under the Warsaw Convention; the Warsaw Convention neverthele ss continued to preempt local claims for damages from the assault).
Finally, in 2004, the Court decided Olympic Airways v. Husain , in which it clarified that finding an “accident” to have occurred for th e purpose of applying Artic le 17 does not require identifying a single “injury producing event” but may rather involve a chain of causation that results in death or bodily injury, so long as ther e is an unexpected or unusual happening external to the passenger in that chain, following Saks

. 14 Husain , 540 U.S. at 651–54 (when asthmatic passenger died after flight attend ant repeatedly but wrongly refused to reseat him away from the

14 At oral argument, there was some confusion about what the “accident ” was in this case: was it the airline’s failure to clean out the seatback pocket, or was it the moment at which the needle in the seatback pocket pricked Doe’s finger? Under Husain , it is not terribly important to identify the moment of the accident so long as there was an accident. That said, it seems clear in our case that the “unexpected or unusual happening” was the moment when the needle pricked Doe’s finger; the airlin e’s failure to clean the pock et was perhaps underlying negligence that allowed the accident to happen. The confusion can be traced to a line from Saks , in which the Court stated that “the text of Article 17 [of th e Warsaw Convention] refers to an accident which caused the passenger’s injury, and not to an accident which is the passenger’s injury.” Saks , 470 U.S. at 398. What the Court meant there was that the mere fact of an unexpected or unusual injury (such as a passenger, for example, suffering a sudden heart attack during a flight) is not itself an accident —something unexpected and external to the passenger must itself cause an injury. At oral argument, pr esumably in response to Etihad’s argu ment that attempted to separate Doe’s injury of bring pricked from the fact that Doe was pricked by a needle , see Section III.A.1, supra , Doe’s counsel argued that Etihad’s failure to clean the airplane was the accident and the needlestick was the bodily injury. Both of those arguments are misplaced: the needlestick was simply an accident that caused a contemporaneous bodily injury. Nothing in the Montreal Convention or in the Warsaw Co nvention caselaw requires us to separate the accident from the bodily injury in cases like this one where there is no temporal gap between the accident and the bodily injury. Of course, in most cases, there is such a gap, as when an accident such as a crash landing causes subsequent and separately identifiable injuries—but in cases like ours, or perhaps in cases of insect bites or physical assaults by flight crewmembers, the accident and the bodily injury may logically be one and the same.No. 16-1042 Doe, et al. v. Etihad Airways Page 25

smoking section, the failure to reseat counted as an “accident,” even though the presence of
ambient smoke in the cabin—not itself an unexpected or unusua l happening on a flight that allowed smoking—could be viewed as an “injury producing event”).

Saks , Chen , Floyd , and Zicherman were all decide d unanimously, and Franklin Mint and Tseng were both decided eight to one over the dissent of Justice Stevens. Husain was decided six to two, with Justice Scalia dissenting, argu ing that because two other Warsaw Convention signatories (England and Aust ralia) had rejected the pr oposition that an airline’s inaction could constitute an “accident” under Article 17, and becau se the text of Article 17 did not clearly resolve that issue, the Court s hould instead have followed the E nglish and Australian decisions.
Husain , 540 U.S. at 659–64 (Scalia, J., dissenting).
These opinions have enjoyed wide acceptance among our sister signa tories, which have given them (especially Saks , Tseng , and Floyd ) at least some deference an d have developed their own jurisprudence using these opinions as guideposts. See, e.g. , Plourde c. Service aérien
F.B.O. inc. , 2007 QCCA 739, para. 29 (Court of Appeal of Quebec) (applying Floyd to deny recovery for purely psychological injury in a Montreal Convention case); Povey v. Qantas Airways Ltd. (2005) 223 CLR 189, 190 (High C ourt of Australia) (applying Saks and considering Tseng and Husain in Warsaw Convention case); King v. Bristow Helicopters Ltd [2002] UKHL 7 (House of Lords) (applying Saks , Tseng , and Floyd in Warsaw Convention case).
Because these Supreme Court cases analyzed aspects of the Warsaw Convention that we have no reason to believe have changed followi ng the ratification of th e Montreal Convention (and that neither party has argued have change d following the ratification of the Montreal Convention), it is reasonable to conclude that thes e cases form part of the “precedent” consistent with which, according to the Explanatory Note ( see n.11, supra ), the drafters expected signatories to construe Article 17(1) of the M ontreal Convention. Accord ingly, we have adopted
Saks ’s definition of “accident,” and our discussion of damages in Section IV will be guided by
Zicherman ’s deference to the forum jurisd iction’s choice-of-law rules.No. 16-1042 Doe, et al. v. Etihad Airways Page 26

2. Why the Second Circuit’s EhrlichDecision Does Not Govern Montreal Convention Claims
In light of the discussion in Sections III.A and III.B, there are several reasons why we decline to adopt Ehrlich to govern Doe’s claims. First, E tihad’s argument that we should adopt
Ehrlich is unconvincing in part because of how thorough Ehrlich itself is: Ehrlich reaches its conclusion only after plumbing th e depths of the original French meaning of the Warsaw Convention, Ehrlich , 360 F.3d at 376–78 (analyzing whether “ dommage survenu en cas de . . . lésion corporelle” incorporates a requirement that the bodily injury [lésion corporelle] cause the damage [dommage]), French legal materials, id. at 380, the purpose of the Warsaw Convention,
id. at 385, and the “negotiating hi story” of the Convention, ibid. Indeed, if Ehrlich is persuasive, it is persuasive not for the c onclusion it reached but for how it got there, and our similarly searching analysis leads us to a conclusion opposite Ehrlich ’s.

Second, Ehrlich interpreted the au thoritative French text of the Warsaw Convention, and found ambiguity in that text (in the original French) that Ehrlich thought could accommodate a causal meaning. 15 Specifically, Ehrlich examined French-language dictionaries and found that the word “cas” in “en cas de” (the French phr ase that was the Warsaw Convention analogue to
the Montreal Convention’s “in case of ”) could actually mean “cause.” Ehrlich , 360 F.3d at 377– 78 (“If ‘cas’ means ‘cause,’ then the phrase ‘domma ge survenu en cas de . . . lésion corporelle,’ as those words are used in Article 17, would hold carriers liable for any ‘damages sustained in the cause of . . . bodily injury.’ Such a translat ion is amenable to an interpretation that would allow passengers to recover fo r mental injuries only where they were caused by a bodily injury.”). Setting aside the fact that the French word cas does not actually mean “cause” except perhaps in the same way that we might say a “hopeless case” is a “lost cause,” 16 the range of ambiguity in the English “in case of” is far, far narrower than the range of ambiguity that Ehrlich found in the French “en cas de” and, as we c oncluded in Section III.A, notwithstanding any ambiguity in the English “in case of,” the plain te xt of the English “in case of” does not contain a requirement that “damages sustai ned” be “caused by” bodily injury.

15 See n.6, supra

. 16 See, e.g. , Cas , Grand Dictionnaire Encyclopédique Larousse (1982).No. 16-1042 Doe, et al. v. Etihad Airways Page 27

Third, as we discussed in Se ction III.B, the purpose of th e Montreal Convention vastly differs from the purpose of the Warsaw Convention, such that we have no reason to interpret Article 17(1) of the Montreal Convention in sucha way as to serve the purposes of the Warsaw Convention, as Ehrlich did.
Fourth, although the Ehrlich court stated that its ruling wa s necessary to avoid anomalous results, it appears that under the Montreal Convention, following Ehrlich would be more rather
than less likely to lead to anomalous results. Ehrlich explained its reasoning as follows:
The interpretation of Article 17 favored by the [plaintiffs] would give rise to anomalous and illogical consequences be cause “similarly situated passengers [would be] treated differently from one a nother on the basis of an arbitrary and insignificant difference in their experi ence.” For example, a passenger who sustained a mental injury but no bodily injury would be unable to look to Article 17 for relief whereas a co-passenger who suffered the same mental injury yet fortuitously pinched his little finger in his tray table while evacuating and thereby suffered an unrelated bodily injury would be able to hold the carrier liable under the Warsaw Convention.

Ehrlich , 360 F.3d at 386.
But our interpretation of Article 17(1) of th e Montreal Convention does not necessarily imply this result. Ehrlich ’s hypothetical here presumably involves some sort of crash or emergency landing (no context is provided in Ehrlich itself for the portion quoted above). Under our interpretation of the Montreal Convention, if an airplane crash-landed, then any passenger who sustained a bodily injury caused by that cr ash-landing would also be permitted to recover for mental anguish sustained in that crash-landing—i.e., a nguish sustained “in case of” a compensable bodily injury. If a passenger sustai ned a broken leg, that passenger would be able to recover for the broken leg, for mental anguish caused by the broken leg, and for mental anguish arising from the crash- landing that accompanied the br oken leg—all of that would be “damage sustained in case of” the broken leg. True, another passenger escaping the same crashlanding physically unscathed would be barred fr om recovering damages for mental anguish alone, but that’s not an “anomalous” result. Rather, it is a result that is fully consistent with (and compelled by) the text of the Montreal Convention.No. 16-1042 Doe, et al. v. Etihad Airways Page 28

Returning to Ehrlich ’s hypothetical of the passenger w ho escapes the same crash-landing entirely unscathed except for a pinched pinky finger: what result? As we read the Montreal Convention, so long as that passenger can prove th at the accident (i.e. th e crash-landing) caused the injury to the pinky finger, that passenger would be able to recover both for the physical injury to the finger and for mental anguish sustained— and that passenger would be able to recover mental anguish sustained on the same terms as the passenger who suffered the broken leg.
None of these outcomes produce an “illogical or unreasonable result” that might caution against our ruling today. Int’l Union, United Auto., Aerospace & Agric. Implement Workers of
Am. v. Brock , 816 F.2d 761, 766 (D.C. Cir. 1987). Thus, we are not persuaded by Ehrlich that we must read in an additional causation requirement to avoid interpreting the Montreal
Convention in a manner that would produce absurd results.
To the contrary, it would be odd to require the passenger to prove which mental injuries
in fact were caused by the physical injuryas opposed to being cau sed more generally by the accident. In our crash-landing hypothetical, a passe nger might, for example, be conscious for the duration of the crash-landing and th en realize that he has suffered a grievous injury to his leg. Perhaps the passenger fears losing the leg for hours or days while he is in the hospital. And perhaps the passenger, who has a compensable bodi ly injury (bruised ri bs and a broken leg), suffers mental anguish and other emotional damage s—some as a result of the fear of losing the leg (which surely would be caused by the bodily injury, even if the leg was ultimately not lost), and some as a result of having e xperienced the cras h-landing.
It would not “favor[] passengers,” Ehrlich , 360 F.3d at 371 n.4, to require the passenger to prove which mental harms were caused direct ly by the broken leg as opposed to being caused more generally by the accident. After all, causati on is difficult. Surely, for example, harm such as insomnia, fear of flying (or other fears), or emotional distress might initially result from the crash-landing but then be exace rbated by the bodily injury. W ould only the portion of harm
traceable and subsequent to the bodily injury be recoverable? Or, what if some of the harm
resulted from the realization of an imminent crash-landing—s hould that harm be excluded from recovery because its cause preceded the accident, while harm occurring toge ther with or flowing from the crash-landing would be recoverable?No. 16-1042 Doe, et al. v. Etihad Airways Page 29

Thus, at the end of the day, adopting Ehrlich would mean requiring Doe and other Montreal Convention plaintiffs to prove causation in a way that burdens the injured passenger far more than the text requires; that would be an anomalous result.
For all these reasons, we decline to adopt Ehrlich

.
3. Relevant Dist rict Court Cases

We now turn to Jack , the district-court opinion that Ehrlich followed, and which was the first district-court opinion to analyze the text and history of the Warsaw Convention at any serious length. Jack followed on the heels of the Supreme Court’s decision in Floyd . In the Jack case, where fire consumed a plane following an aborted takeoff and cras h but all the passengers survived, the court addressed the question whether Floyd ’s bar to recovering purely mental damages under the Warsaw Conventi on also meant that mental angui sh was recoverable only if caused by bodily injury. Jack , 854 F. Supp. at 657. The court posited four theories for the recovery of emotional-distre ss damages under Article 17:

1. Emotional-distress damages are never recoverable. Id. at 665.
2. Emotional-distress damages are always reco verable as long as the plaintiff has a bodily injury, even if the bodily injury is w holly unrelated to the emotional distress.
Id. at 665–66 (notably, the court found that this approach “would read emotional distress as damages resulting from the accid ent (as opposed to the injury), which is difficult to do under the wording of Article 17,” although the court did not explain the difficulty). This theory is broader than our interpretation, in that it allows recovery for mental injuries that are wholly unrel ated to a compensable bodily injury, which would seem to capture more than just thos e mental injuries “sustained in case of” a compensable bodily injury.
3. Emotional-distress damages are recoverable as “an element of the damages for bodily injury,” but “need not be about the injury,” so long as th e distress occurs “at the same time or later than the bodily injury.” Id. at 666–67 (noting that in a plane crash that caused an injury, distress about the plane crash would be recoverable so long as it occurred after the injury, just as federal common law would allow the victim of aNo. 16-1042 Doe, et al. v. Etihad Airways Page 30

racially motivated false arrestto recover for emotional dist ress subsequent to physical injuries sustained, and not only for the minor physical injuries). Th is theory attempts to limit the scope of recovery to someth ing narrower than what the second theory would allow, but it doe s so by reading in a temporalelement, which is not supported by the text of the treaty.
4. Emotional-distress damages are recoverable only if they are “caused by the bodily injury.” Id. at 667–68. This was the approach Jack settled on and that Ehrlich adopted. The problem with this purported tetralemma is that it omits a plausible fifth option— namely, our conclusion that mental injuries are recoverable if theyare caused either by a compensable bodily injury or by the accident that causes a comp ensable bodily injury. Thus,
while Jack ’s theoretical framework produces anelegant syllogism in support of Jack ’s fourth theory, it is not one that we ha ve reason to follow in interpreti ng the Montreal Convention. Plus, as we noted above, Jack expressly acknowledged that its four th theory “read a causal component
into” the Warsaw Convention. Id. at 668.
Etihad relies not only on Jack but also on Rothschild v. Tower Air, Inc. , 1995 WL 71053 (E.D. Pa. Feb. 22, 1995). In Rothschild , a passenger (Joan Rothschild) bound for New York from Tel Aviv reached into a seatback pocket and—just like Doe—was pricked on the finger by a hypodermic needle that lay hidden within. Id. at *1. Mrs. Rothschild sued the airline for damages under the Warsaw Convention and Pennsyl vania state law. The airline removed the case from Pennsylvania state court to federal distri ct court, where Mrs. Rothschild proceeded to jury trial and won a $10,000 verdic t for her injuries. But, although Mrs. Rothschild had been “permitted to testify about, and recover for, her pain and suffering flowing from the needle prick, such as any pain and suffering she experienced fr om the various tests that were performed on her,” Mrs. Rothschild “was not permitted to testify about her fear of contracting AIDS and/or hepatitis because she did not show any exposure to these diseases, and permitting recovery under these circumstances would be purely speculative.” Id. at *2. Mrs. Rothschild contended that the court improperly prevented her from testifying about her fear of AI DS and hepatitis and she thus moved for a new trial, presumably in pursuit of a larger damages award; her motion was denied.No. 16-1042 Doe, et al. v. Etihad Airways Page 31

Etihad relies on the denial of Mrs. Rothschild’s motion for new trial to support its
contention that “fear of AIDS/c ontagion is too speculative to be recoverable absent actual exposure.” Appellee’s Br. 20. But, for several reasons, Rothschild does not help Etihad. First,
the Rothschild court expressly applied Pennsylvania state law, rather than the Warsaw Convention, in determining whether Mrs. Rothsc hild could recover for fear of contagion. Id. at *1 n.2, *2. The court noted that the parties “agree[d] that the Warsaw Convention [was] applicable” but that they had nevertheless based their arguments on Pennsylvania state law. Id. at *1 n.2. “Due to this apparent uncertainty of the parties as to the applicable law,” the court stated its intention to “analy ze this matter under both the Wars aw Convention and Pennsylvania
law.” Ibid. But the court did not actually apply th e Warsaw Convention to determine which of
Mrs. Rothschild’s claims were cognizable; rather, the court cited Jack for the general proposition that emotional distress was recoverable only if it “related to and flow[ed] from” physical injury,
id. at *1, and the court then turned to various cases decided under Pennsyl vania state law to hold
that “in order to recover for the fear of contractin g a disease, a plaintiff must show that there has been some exposure to the disease.” Id. at *2. Whether Pennsylvani a state law does or does not require a plaintiff to prove actua l exposure to a disease to recove r for fear of contagion is a question that is not relevant to the matter before us, so this line of reasoning from Rothschild does not help Etihad.
Second, unlike Doe, Mrs. Rothschild was tested for AIDS only once—the day after the
incident—and the Rothschild court’s denial of her motion for ne w trial relied on the fact that “[d]uring the seven months betw een the injury and trial, Mrs. Rothschild was never again
tested.” Id. at *3. The Rothschild court might thus have had good reason to find, as a matter of fact, that Mrs. Rothschild’s claimed fear of contagion was too speculative to support additional damages.
Third, the fact that Mrs. Rothschild proceeded to trial at all would seemingly help Doe more than it helps Etihad, especially in light of the fact that we are revi ewing the district court’s grant of partial summary judgment. How reasonabl e or speculative Doe’s fear of contagion was is not a question of whether Etihad may be liable to Doe but is rather a question of fact (and a damages question, at that) that is properly resolved at trial rather than at summar y judgment.No. 16-1042 Doe, et al. v. Etihad Airways Page 32

In sum, neither Jack nor Rothschild provides any basis on which to affirm the grant of partial summary judgment for Etihad.

D. The Montreal Convention in Our Sister Circuits

We now turn to recent Montreal Convention d ecisions of our sister circuits. Since the ratification of the Montreal Convention, some of our sister circ uits have applied Ehrlich in deciding Montreal Convention cases, but—so far, at least—they have done so without seriously considering either the text or the purpose of the Montreal Conve ntion, and they have done so only in cases in which the outcome was not ma terially affected by the decision to apply Ehrlich rather than our interpretation of the text of Article 17(1).
The Eleventh Circuit, for example, affirm ed a grant of summary judgment against a Montreal Convention plaintiff who traveled fro m Hawaii to Mumbai, India, and was refused entry (and ordered to return to the United Stat es) by the Indian government for lack of proper immigration documentation. He subsequently cl aimed that Korean Air Lines was liable for various alleged “accidents” including (1) an alleged theft of $2000 cash from him; (2) denial of access to medicine while his luggage was checked; (3) failure to call a doctor for him while in Mumbai or in transit in South Korea; (4) failure to provide diabetic meals on the return flight from Mumbai; (5) “detention” and lack of “prope r hydration” in a holdi ng area in South Korea; and (6) failure to assist him when his legs swelled and caused him to fall. Jacob v. Korean Air
Lines , 606 F. App’x 478, 482 (11th Cir. 2015) (per curi am) (first holding that plaintiff had failed to prove that any “accident” had happened on bo ard that had caused him a bodily injury, then holding alternatively that plai ntiff’s damages were unrecovera ble emotional damages). In denying recovery for “ subsequent physical manifestations of an earlier emotional injury,” the court quoted Ehrlich ’s statement that “mental injuries are recoverable under Article 17 only to the extent that they have been caused by bodily injuries.” Id. at 482 (quoting Ehrlich , 360 F.3d at 400).

Jacob does not conduct any analysis of the text of the Montreal Convention; in a footnote, the opinion notes that “[c]ourts inte rpreting the Montreal Convention may rely on authority concerning its predecessor, the Warsaw Convention, where provisions of bothNo. 16-1042 Doe, et al. v. Etihad Airways Page 33

conventions are similar.” Ibid. (citing Campbell v. Air Jam. Ltd. , 760 F.3d 1165, 1177 (11th Cir.), cert. denied , 135 S. Ct. 759 (2014)). Notably, in Campbell , on which Jacob relies to support its adoption of Warsaw cas elaw, the plaintiff had failed to state a claim under Article 17(1) of the Montreal Convention because hi s only claimed damages were economic losses arising from a delay. Campbell , 760 F.3d at 1167 (“He stated no Article 17 claim, however, because he did not allege injuries ca used by an ‘accident’ . . . .”).

Thus, neither Jacob nor Campbellhad reason to consider whether mental damages accompanying a compensable bodily injury were r ecoverable under Article 17(1) of the Montreal
Convention. Nor did Jacob ’s use of Ehrlich amount to a reasoned decision to adopt Ehrlich as opposed to a competing approach to recove ry for mental anguish under the Montreal Convention, because there was no “accident” in Jacob in the first place.
In its partial-summary-judgment orde r, the district court below cited Bassam v. Am. Airlines, Inc. , 287 F. App’x 309, 317 (5th Cir. 2008), an unpublished decision of the Fifth Circuit
in which that court cited Ehrlich to support the proposition that “c ourts have held that emotional injuries are not recoverable unde r Article 17 of the Montreal Convention or Warsaw Convention unless they were caused by physical injuries.” Bassam , 287 F. App’x at 317 (emphasis added).
But Bassam was a case in which the plaintiff’s only claimed injuries were emotional and not physical: in Bassam , the plaintiff sued the airline because one of her checked bags was lost for several months during which time the plaintiff suffered “embarrassment and upset of not being able to dress and appear in public as was her prior practice.” Id. at 311. Indeed, the Bassam opinion itself makes clear that in citing Ehrlich , Bassam was not deliberately interpreting “in case of” to mean “caused by” (that is, Bassam was not deliberately adopting Ehrlich to define “in
case of” in the Montreal Conven tion), but rather was establishi ng that the plaintiff could not show any accident or bodily injury that would be required to recover for emotional injuries under Article 17(1) of the Mo ntreal Convention:
Bassam has not alleged any physical injury . Moreover, even if her claim of “embarrassment and upset” could be construe d as such, that injury was not caused by an accident on board the aircraft or in the course of embarking or disembarking. Therefore, Bassam has fail ed to establish carrier liability for emotional distress damages under Article 17(1).No. 16-1042 Doe, et al. v. Etihad Airways Page 34

Id. at 317. Etihad’s reliance on Bassam , and the district court’s use of Bassam to support its grant of partial summary judgment in this case, are thus unfounded. 17

Finally, it is worth noting that some courts have looked to the rela tive histories of the Warsaw and Montreal Conventions to support reaching a different conclusion under the
Montreal Convention than what the Wars aw Convention might have dictated. See Pierre-Louis v. Newvac Corp. , 584 F.3d 1052, 1058, 1058 n.7 (11th Cir. 2009) (affirming the dismissal of
Montreal Convention claims on forum non conveniens grounds when parallel Warsaw Convention claims would not have been subject to such dismissal; distinguishing the instant case from “cases [that] involved interpretation of the Warsaw Convention, a predecessor to the Montreal Convention drafted in 1929, at which time forum non conveniens, in its current form, was not recognized under U.S. law”).
E. Relevant Foreign Law
When we interpret a treaty provision, “the opi nions of our sister signatories [are] entitled to considerable weight.” Saks , 470 U.S. at 404 (quoting Benjamins v. British European Airways , 572 F.2d 913, 919 (2d Cir. 1978)); see also Husain , 540 U.S. at 660 (Scalia, J., dissenting) (“We can, and should, look to decisions of other signatories when we interpret treaty provisions. Foreign constructions are evidence of the orig inal shared understanding of the contracting parties.”).
Most Montreal Convention litigation in the Eu ropean courts has i nvolved the interplay between the Convention and various European Union Regulations, specifically in cases of delays and lost baggage. See, e.g. , Case C-94/14, Flight Refund Ltd v. Deutsche Lufthansa AG ,

17 Other than Bassam , the only other Montreal Convention ca se cited by the district court is Baah v. Virgin Atl. Airways , 473 F. Supp. 2d 591, 595–56 (S.D.N.Y. 2007). The court cited Baah to support the proposition that “[c]ourts routinely look to legal pr ecedent interpreting the Warsaw Conven tion for substantively equivalent provisions of the Montreal Convention.” But Baah dismissed the plaintiff’s clai ms for lack of subject-matter jurisdiction, and the “substantively equivalent provisions” of the Warsaw and Montreal Conventions that Baah analyzed were the jurisdictional requirements in each trea ty (and specifically the phrase “place of destination” in each)—not Article 17, and not any provision that would be s ubject to reinterpretation in light of the ratification of the Montreal Convention. All the cases cited by the district court other than Bassam and Baah are Warsaw Convention decisions.No. 16-1042 Doe, et al. v. Etihad Airways Page 35

2016 E.C.R. 148 (Court of Justice) (del ay-compensation claim); Case C-63/09, Walz v. Clickair
SA , 2010 E.C.R. I-4239 (Court of Justice) (lost-bagga ge claim). But some cases have involved the interpretation of Article 17( 1). The Supreme Court of the United Kingdom has reaffirmed, for example, that “injury to feelings . . . relate d to [a passenger’s] treatment during the process of embarkation and during the flight, which made hi m feel humiliated” is not a “bodily injury” under Article 17(1) of the Montreal Convention. Hook v. British Airways Plc [2014] UKSC 15, 2014 WL 795206, at *6.
One Canadian court, engaging in a mode of analysis substan tially similar to ours in this case, applied Floyd and considered Ehrlich in declining to interpret “bodily injury” in Article 17(1) of the Montreal Conven tion to include purely psychologi cal injuries caused by an emergency landing. Plourde , 2007 QCCA 739, at para. 29.

None of these cases, however, confronted th e question of whether mental anguish that accompanies a compensable bodily injury, rather than only mental anguish caused by a bodily injury, is recoverable under Article 17(1).
Indeed, the only foreign case we can find that has confronted that question is a decision of a trial court in British Columbia, which—citing Floyd and Ehrlich favorably—required a “sufficient causal link” between the bodily injury and the mental injury in order for the mental injury to be compensable:
In some cases, the causal link between the bodily injury and the mental injury will be clear. For example, an airline passe nger who suffers burns on his or her face as a result of an aircraft fire will undoubtedly suffer mental anguish. So long as the bodily injury is proven, the mental in jury proven to have been caused by it will be compensable.
Wettlaufer v. Air Transat A.T. Inc. , 2013 BCSC 1245, para. 82 (2013) (where a passenger aboard an Air Transat flight from Vancouver to Cancun was struck by “an unsecured food cart” upon landing, the passenger recovered m oney damages under Article 17(1) to compensate her for both her bodily injury and the emotional damages resu lting from her fear of being “bumped” while driving or walking in public, but not to compensate for fear of flying “because there is not a
sufficient causal link between such a fear and the whiplash-type injury” sustained).No. 16-1042 Doe, et al. v. Etihad Airways Page 36

Despite Wettlaufer ’s “sufficient causal link” lang uage, the relief ordered in Wettlaufer is entirely consistent with the relief Doe seeks here and with our interpretation of Article 17(1): the “accident” that harmed Wettlaufer was being struck by the food cart, her “bodily injury” included the resulting bruises on her back and neck, and her recoverable emotional damages— fear of being “bumped”—seemingly must have been caused not by th e bruises themselves, but from the fact that she was bumped by a food cart (that is—again, despite the language used by the court—her emotional damages were caused by the accident that caused the bodily injury, and those emotional damages were nevertheless r ecoverable). Further, denying Wettlaufer’s recovery for fear of flying is co nsistent with the text of Article 17(1) as well, because fear of flying might not be the sort of fear “sustained in case of” bruise s caused by a runaway food cart. Wettlaufer does not seriously explore the language “dam age sustained in case of,” and it is only the decision of a provincial trial court rather than a sister signatory’s high cour t. Even if we were to accord it the same weight as a decision of a hi gh court, however, it would not give us reason to believe that our decision today is at odds wi th the “shared understanding of the contracting parties” to the Montreal Convention. Husain , 540 U.S. at 660.
F. The Montreal Convention Imposes Liability for Emotional and Mental Harms Accompanying a Compensable Bodily Injury In light of the foregoing disc ussion, we now provide a brief summary of our decision and its application to Doe’s case. For ease of referen ce, we state again the full text of Article 17(1)
of the Montreal Convention:
The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircra ft or in the course of any of the operations of embarking or disembarking.
Montreal Convention art. 17(1).
To prevail on a claim for damages under Arti cle 17(1), a plainti ff must prove that (1) there was an “accident,” defined as “an une xpected or unusual event or happening that is external to the passenger,” Saks , 470 U.S. at 405; (2) the accident happened either “on board the aircraft” or during “the operations of embarking or disemb arking”; and (3) th e accident caused “death or bodily injury of a passenger.” The car rier is then liable for damage sustained, whichNo. 16-1042 Doe, et al. v. Etihad Airways Page 37

we interpret to include emotional or mental da mages, so long as they are traceable to the
accident , regardless of whether they are caused directly by the bodily injury

. A simple example serves to illustrate our understanding. Consider a case in which an overhead bin unexpectedly opens in flight, causing a suitcase to fall out a nd strike a passenger in the eye. The passenger might sustain bodily injury—bruises, broken or fractured bones, a concussion, etc.—and the passenger mi ght sustain mental anguish suchas the fear of losing sight in the injured eye or a fear of being struck by flying objects. The “accident” would be the suitcase striking the passenger. (The faulty overh ead bin or latch, like the airline’s failure to clean out the seatback pocket in Doe’s case, might be underlying negligence that precipitated the accident.) The accident happened on board the aircra ft. And the accident caused bodily injury. Thus, the carrier would be liable for the passe nger’s damage sustained as the result of being struck by the suitcase—including such mental a nguish as fear of losi ng sight, even if the passenger ultimately did not suffer a loss of vision, and even if the fear of losing sight was not caused directly by a bodily injury.
The following diagram illustrates this result:



### Bodily Injury Mental Anguish [bruises, concussion, [embarrassment caused by broken bones, etc.] visible bruises, for example] ( compensable ) ( compensable )


### ACCIDENT [i.e., being struck by a suitcase] 

### Mental Anguish [fear of losing eyesight, fear of be ing struck by flying objects, etc.] ( also compensable , because it is sustaine d as a result of an accident that caused a compensable bodily injury)

Under Etihad’s framework, a plaintiff seekin g to recover damages for mental anguish would instead have to prove that an accident caused bodily injury, which in turn caused theNo. 16-1042 Doe, et al. v. Etihad Airways Page 38

mental anguish. But that framework is neither found in the text of the Montreal Convention nor supported by the history and purpose of the Montreal Convention, nor do relevant decisions of
the courts of the United States or sister signatories give us reason to adopt Etihad’s understanding.
Here, the accident was the needle pricking Doe’s finger. The accident happened on board Etihad’s aircraft. And the accident caused bodily injury, as Etihad has conceded. Etihad is therefore liable for Doe’s damage sustained, which includes both her phys ical injury and the mental anguish that she is able to prove that she sustai ned. Assuming that, on remand, Doe is able to prove fear of contagion or other mental anguish, Etihad is liable for damages arising from that anguish regardless of whet her the anguish was directly caus ed by the physical hole in Doe’s finger or by the fact that Doe was pricke d by a needle. The diagram at page 14, supra , illustrates
this result.

IV
Michigan Damages Laws Govern th e Measure of Doe’s Recovery

and Any Recovery by Doe’s Husband for Loss of Consortium Having determined that the Montreal Conven tion does not preclude E tihad’s liability for Doe’s mental-anguish claims, we turn to the choice-of-law question of whose law governs the measure of any recovery to whic h Doe is entitled. Al though the district court did not expressly (or implicitly) address this question in its orde r granting partial summary judgment, the question was raised in the parties’ summary-judgment pl eadings below. On appeal, Plaintiffs’ brief includes a lengthy discussion of whether federal common law or Michigan law determines the extent of Doe’s recovery for mental anguish. Appellants’ Br. 23–29. Etih ad responds at even greater length in its brief. Appellee’s Br. 26–37. For the reas ons that follow, Michigan law governs both the measure of Doe’ s recovery and the ability of Doe’s husband to recover damages for loss of consortium.

Article 29 of the Montreal C onvention clarifies that actions under Article 17(1), such as Plaintiffs’ action, are brought “with out prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights .” Montreal Convention art.No. 16-1042 Doe, et al. v. Etihad Airways Page 39

29 (emphasis added). As we discussed in Se ction III.C.1, supra , the United States Supreme Court has held that the effect of the parallel pr ovision in the Warsaw C onvention (Article 24) is to leave to the domestic law of the contracting parties the determination of how a successful plaintiff’s damages are measured. See Zicherman , 516 U.S. at 224–26. Lower courts have consistently applied Zicherman to hold that the measure of dama ges is to be fixed according to whatever law (i.e., according to whatever choice-of-law rules) would apply in a domestic-law case, and Zicherman is one of the Warsaw Convention “precedents” that guides our interpretation of the Montreal Convention. See Section III.A & n.11, supra ; see also Pescatore v. Pan Am World Airways, Inc. , 97 F.3d 1, 4–5 (2d Ci r. 1996) (applying Zicherman to reject the argument that a uniform “federal common law” should provide the measure of damages for plaintiffs bringing claims on beha lf of victims killed in the bombing of Pan Am Flight 103 over Lockerbie, Scotland, and instead conducting a choi ce-of-law analysis to conclude that Ohio damages laws applied and that Ohio law allowe d plaintiffs to recover damages for loss of society, support, and services, and for grief).

In this case, then, the district court s hould measure Doe’s damages by whatever law would apply to an analogous case in the Eastern District of Michigan. An analogous case would be a diversity action for personal-injury dama ges. A federal court exercising diversity jurisdiction applies the choice-of-law rules of the state in which it sits. Klaxon Co. v. Stentor Elec. Mfg. Co. , 313 U.S. 487, 496 (1941). And “a federal co urt in a diversity action is obligated to apply the law it believes the highest court of the state would apply if it were faced with the
issue.” Mahne v. Ford Motor Co. , 900 F.2d 83, 86 (6th Cir. 1990).
Our court has previously recognized Michigan ’s strong presumption in favor of applying Michigan law in Michigan courts:
Michigan’s choice of law framework is established in two Michigan Supreme Court decisions: Olmstead v. Anderson , 428 Mich. 1, 400 N.W.2d 292, 302 (1987), and Sutherland v. Kennington Truck Serv., Ltd. , 454 Mich. 274, 562 N.W.2d 466, 471 (1997). In a tort act ion, Michigan courts recognize a presumption in favor of lex fori and apply Michigan law “unless a ‘rational reason’ to do otherwise exists.” Sutherland , 562 N.W.2d at 471. The two-step test for determining whether such a ra tional reason exists was distilled in Sutherland from Olmstead as follows:No. 16-1042 Doe, et al. v. Etihad Airways Page 40

First, we must determine if any foreign state has an interest in having its law applied. If no st ate has such an interest, the presumption that Michigan law wi ll apply cannot be overcome. If a foreign state does have an intere st in having its law applied, we must then determine if Michigan’s interests mandate that Michigan law be applied, despite the foreign interests.

Id.

Standard Fire Ins. Co. v. Ford Motor Co. , 723 F.3d 690, 693 (6th Cir. 2013).
Neither party here has asserted a “rational reason” for us to hold that any law other than Michigan’s damages laws should apply to govern the m easure of Plaintiffs’ recovery, including any recovery by Doe’s husband for loss of consortiu m. Plaintiffs are Michigan residents, so there is no reason to apply the substantive law of any state in the United States other than Michigan. And Etihad has not ar gued that the law of the United Arab Emirates should apply.
Michigan’s substantive damages laws therefor e govern the measure of any recovery that Plaintiffs win. On remand, assuming Doe wins a judgm ent, the district court is free to determine,
within the bounds of what Michigan damages laws allow, what specific kinds of damages—such as emotional distress, mental anguish, fear of contagion, loss of consortium, and so on—
Plaintiffs are entitled to recover, in “grant[ing] the relief to which each party is entitled.” Fed. R. Civ. P. 54(c).

V

The Warsaw Convention ruled aviation law for mo re than seventy-five years. Over the decades, despite various amendments, courts have routinely interpreted the Warsaw Convention in line with its purpose as draf ted in 1929. Etihad urges us to interpret the Montreal Convention in line with that same purpose.

But the Montreal Convention is not an amendment to the Warsaw Convention. The Warsaw Convention provided limitations of liabilityto protect fledgling airlines from litigious passengers; the Montreal Convention provides limita tions of liability to protect (still litigious) passengers from the not-so-fledgling airlines. To adopt Etihad’s reading of the Montreal Convention would distort the treaty ’s text and would frustrate ra ther than serve its purpose.No. 16-1042 Doe, et al. v. Etihad Airways Page 41

Having determined that the Montreal Conven tion imposes liability for the damages that Doe has alleged, and that the damages laws of Michigan govern the m easure of any judgment Plaintiffs win, we REVERSE the district court’s partial-summary-judgment order and
REMAND this matter for further proceedings consistent with this opinion.