1 The seats may have been reclined when Mrs. Potter left for the lavatory. United States Court of Appeals,

Fifth Circuit.

No. 95-50934.

Elizabeth POTTER, Plaintiff-Appellant,

v.

DELTA AIR LINES, INC., Defendant-Appellee.

Nov. 6, 1996.

Appeal from the United States District Court for the Western District of Texas.

Before KING, SMITH and WIENER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Elizabeth Potter appeals a summary judgment in favor of Delta Air Lines, Inc. ("Delta"), on

her Warsaw Convention and state law negligence claims. Finding no error, we affirm.

I.

As part of a tour package , Elizabeth and James Potter bought a round-trip airline ticket to

Europe. During a flight from Atlanta to Dallas, as part of the European trip, Mrs. Potter was seated

in row 22, seat A (the window seat). Her husband was in row 22, seat B (the aisle seat). A "rude,"

"hostile," and "intimidating" man occupied seat 21-B, directly in front of Mr. Potter. The rude man

had caused a scene at the beginning of the flight by having a confrontation with the woman sitting

next to him in seat 21-A. The flight attendant had moved the woman to another seat, and another

passenger had taken her place.

About one hour into the flight, Mrs. Potter went to the lavat ory. When she returned, the

passengers in seats 21-A and 21-B had fully reclined their seat s. 1 The rude man in 21-B, the aisle

seat, was asleep. Then, in Mrs. Potter's counsel's words:

Mrs. Potter's husband was going to have the man move his seat forward, but Mrs. Potter did

not want that to happen for fear of the way that man acted earlier on the flight. Because of

the confrontation, she did not wish to engage the man in conversation, nor to wake him when

he was asleep.2 Neither Mrs. Potter nor Delta specified whether Mr. Potter (1) stood up without exiting the

row or (2) actually exited the row and stood in the aisle.

3 Convention for the Unification of Certain Rules Relating to International Transportation by

Ai r, Oct. 12, 1949, 49 Stat. 3000, T.S. No. 876 (1934), 49 U.S.C.App. § 1502 note.

4 The Warsaw Convention is a treaty of the United States, see Sw aminathan v. Sw iss Air

Transp. Co., 962 F.2d 387, 390 (5th Cir.1992), the interpretation of which is a federal question,

see 28 U.S.C. § 1331 (1993). Instead, Mr. Potter got up so that Mrs. Potter coul d pass. 2

As Mrs. Potter turned to enter the row and sit down, she twisted her knee. Specifically, her

foot remained anchored to the carpet in the aisle while the rest of her body turned, resulting in a torn

knee ligament.

II.

Mrs. Potter seeks damages from Delta for th e injury. She filed suit in Texas state court,

alleging claims under state law and the Warsaw Convention. 3 Delta originally removed the action on

the basis of diversity jurisdiction and later added federal question jurisdiction as a basis for removal. 4

The district court denied Mrs. Potter's mo t ion to remand. Delta moved for summary

judgment and for protecti on from discove ry, stating specific objections to Mrs. Potter's

interrogatories. Mrs. Potter responded, filing affidavits and deposition excerpts. The district court,

on Mrs. Potter's motion, permitted her to file additional summary judgment evidence and extended

t he t ime for doing so. The court then granted Delta's motion for protection, deny ing Mrs. Pot t er

discovery on certain issues, including— inter alia —the design and manufacture of the airplane seats

and carpet.

Finally, the court granted summary judgment to Delta, making two relevant holdings. First,

the court held that the Warsaw Convention supplied the exclusive cause of action for Mrs. Potter's

injury— i.e., that the Convention completely preempts state law where the former applies, and that

the Convention applies here. Second, the court held that Mrs. Potter had failed to prove an element

o f her Warsaw Convention cause of action— i .e., that an "accident," as that term is used in t h e

Convention, caused her injury.

III.5 Article 17 provides: "The carrier shall be liable for damage sustained in the event of the death

or wounding of a passenger or any other bodily injured suffered by a passenger, if the accident

which caused the damages so sustained took place on board the aircraft or in the course of any of

the operations of embarking or disembarking." The Supreme Court has noted that the governing

text of article 17—indeed, of the entire Convention—is in French. Air France v. Saks, 470 U.S.

392, 397, 105 S.Ct. 1338, 1341, 84 L.Ed.2d 289 (1985). Accordingly , the Court set out the

French text in the margin, and it may be found there. See id. at 394 n. 1, 105 S.Ct. at 1340 n. 1. We review a grant of summary judgment de novo. See Hanks v. Transcontinental Gas Pipe

Line Corp., 953 F.2d 996, 997 (5th Cir.1992). Summary judgment is appropriate "if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law." F ED .R.C IV .P. 56(c).

Mrs. Potter first contests the holding on her Warsaw Convention claim, arguing that she did

show that her injury was caused by an "accident," as such term is used in article 17 of the

Convention. 5 Liability under article 17 "arises only if a passenger's injury is caused by an unexpected

or unusual event or happening that is external to the passenger." Saks, 470 U.S. at 405, 105 S.Ct.

at 1345 (emphasis added). Because this definition is to applied flexibly, and because "[a]ny injury is

the product of a chain of causes, [ ] we require only that the passenger be able to prove that some link

in the chain was an unusual or unexpected event external to the passenger." I d. at 406, 105 S.Ct. at

1346 (emphasis added).

Mrs. Potter argues that the rude, hostile man sleeping in the fully reclined seat in the row in

front was an unusual or unexpected event external to her. Assuming arguendo that a rude, hostile

passenger is unusual or unexpected, he himself is not an "event or happening." Similarly, neither a

fully reclined seat nor the act of sleeping in it is an unusual or unexpected event or happening on an

airplane.

Thus, the circumstances of this case simply do not fit into t he definition of "accident"

established in Saks. As a result, Mrs. Potter's Warsaw Convention claim is without merit.

IV.

Having d et ermined t hat Mrs. Potter has failed to create a genuine issue of material fact

regarding whether her injury was the result of an "accident," we now address whether her state law6 Article 18 provides: "(1) The carrier shall be liable for damage sustained in the event of the

destruction of loss of, or of damage to, any checked baggage or any goods, if the occurrence

which caused the damage so sustained took place during the transportation by air."

7 Article 24(1) provides: "In the cases covered by articles 18 and 19 any action for damages,

however founded, can only be brought subject to the conditions and limits set out in this

convention." claims for negligence are preempted by the exclu sive cause of action provided in article 17. Mrs.

Potter does not contest that article 17 provides the exclusive remedy for actions maintained under

the Warsaw Convention, but she asserts that where an injury is not compensable under article 17, a

separate cause of action for damages lies under state law. Whether article 17 preempts all state law

causes of action, not just state remedies, is res nova in this circuit.

We have held previously that the Warsaw Convention creates the cause o f action and

exclusive reme dy for arti cl e 18 6 claims and that it preempts state law "in the areas covered."

Boehringer-Mannheim Diagnostics, Inc., v. Pan American World Airways, 737 F.2d 456, 458-59

(5th Cir.1984), cert. deni ed, 469 U.S. 1186, 105 S.Ct. 951, 83 L.Ed.2d 959 (1985). We further

defined "areas covered" broadly, noting that they encompass the "field" in which the Convention has

enacted law. S ee id. at 459. Mrs. Potter notes correctly that the specific holding in B oehringerMannheim is inapposite to the instant case, both because article 18 covers damag e to checked

luggage while article 17 covers personal damage and because the language of the two articles differs.

Article 18 covers damages resulting from an "o ccurrence," whereas article 17 is limited to

damages resulting from an "accident." Because "occurrence" extends more broadly to cover most

instances of damages to checked luggage, whereas "accident" is limit ed to "an unexpected or unusual

event or happening that is external to the passenger," see Saks, 470 U.S. at 405, 105 S.Ct. at 1345,

Mrs. Potter asserts that most problems associated with checked luggage will be r eparable under

article 18, making recourse to state law for noncognizable claims merely duplicative.

Given article 18's broad scope, Mrs. Potter thus argues that the Boehringer-Mannheim court

properly construed article 24(1) 7 to preempt state law "in the areas covered" by the Warsaw

Convention. B oehringer-Mannheim, 737 F.2d at 458. She reasons that because state law causes of

action will not be cumulative where there is no "accident" under the Convention, they should not be8 Article 24(2) provides: "In the cases covered by article 17 the provisions of the preceding

paragraph shall also apply, without prejudice to the questions as to who are the persons who have

the right to bring suit and what are their respective rights."

9 Mrs. Potter errs in citing to the publisher's headnote 2 of Luna v. Compania Panamena De

Aviacion, S.A., 851 F.Supp. 826 (S.D.Tex.1994), in support of her argument that plaintiffs have

access to state law causes of action for non-accidents. Headnotes, however, are written by the

publisher, not the court. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct.

282, 287, 50 L.Ed. 499 (1906) ("[T]he headnote is not the work of the court, nor does it state its

decision.... It is simply the work of the reporter, gives his understanding of the decision, and is

prepared for the convenience of the profession in the examination of the reports.") We do not

counsel citations to headnotes. preempted. Mrs. Potter thus reads the preemption language in article 24(2) 8 to prohibit state law

causes of action only where a claim has been adjudicated an "accident" and deemed com pensable

under the Warsaw Convention. 9 We disagree.

We note first t hat " "t reaties are construed more liberally than private agreements, and to

as cert ain their meaning we may look beyond the written words to the history of the treaty, the

negotiations, and the practical construction ad opted by the parti es.' " S aks, 470 U.S. at 396, 105

S.Ct. at 1341 (citation omitted). "The terms of the convention must be construed broadly in order

to advance its goals." F

loyd v. Eastern Airlines, 872 F.2d 1462, 1473 (11th Cir.1989) ( citation

omitted), rev'd on other grounds, 499 U.S. 530, 111 S.Ct. 1489, 113 L.Ed.2d 569 (1991).

Because the Convention has not expressly preempted state law, we examine the test for

non-express preemption, which requires that we determine whether (1) the area requires uniformity

vit al t o national interests such that allowing state regulation "would create potential frustration of

national purposes," see San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244, 79 S.Ct.

773, 779, 3 L.Ed.2d 775 (1959); (2) there is evidence of congressional design to preempt the field,

see Jones v. Rath Packing Co., 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977); or (3) the state

statute actually conflicts with the federal provision. S ee Block v. Compagnie Nationale Air France,

386 F.2d 323 (5th Cir.1967), cert. denied, 392 U.S. 905, 88 S.Ct. 2053, 20 L.Ed.2d 1363 (1968).

We conclude that the subject matter of the Convention re quires uniformity and thus provides the

exclusive cause of action under article 17 for personal injuries and death.

A primary function of the Warsaw Convention is to foster uniformity in the laws governing10 Cognizant of this fact, courts addressing choice of law issues have applied a federal choice of

law rule. See Bickel v. Korean Air Lines Co., 83 F.3d 127, 130 (6th Cir.1996) ("The Warsaw

Convention, however, embodies a concrete federal policy of uniformity and certainty, which

would be undermined by the use of state choice of law rules."); In re Air Disaster, 928 F.2d at

1274 ("[W]e see no reason to believe that the drafters meant to denote the laws of subdivisions

within nations.... "The basis unit of international law is the nation-states and it is fair to assume,

absent clear indications to the contrary, that [the Convention] was written with reference to

nation-states, and not to areas and subdivisions of nation-states.' ") (citations omitted). international air carrier liabilit y. S ee Zicherman v. Korean Air Lines Co.,

--- U.S.

----, ----, 116 S.Ct.

629, 636, 133 L.Ed.2d 596 (1996); S w aminathan, 962 F.2d at 390; In re Air Disaster at Lockerbie,

Scotland on Dec. 21, 1988, 928 F.2d 1267, 1275 (2d Cir.), cert. denied, 502 U.S. 920, 112 S.Ct.

331, 116 L.Ed.2d 272 (1991); E astern Airlines, 872 F.2d at 1473; B oehringer-Mannheim, 737 F.2d

at 459. Uniformity with respect to liability is required in order to allow airlines to raise the capital

needed to expand operations and to provide a definite basis upon which their insurance rates can be

calculated. See In re Air Disaster, 928 F.2d at 1270-71 (citation omitted).

The Convention's goals of uniformity and certainty would be frustrated were we to allow Mrs.

Potter to a ssert her st ate law claims, even where the Convention does not provide her a remedy.

First, as the Second Circuit has recognized with respect to the un availability of punitive damages

under article 17, recourse to state law "would sink federal courts into a Syrtis bog where they would

not know whether they were at sea or on good dry land when deciding what law a plaint iff can rely

upon, what law the court itself should apply, and why." I d. at 1276 (citation omitted); see also

Eastern Airlines, 872 F.2d at 1488.

The Convention's express limitation on individual recovery of $75,000, see art icle 22(1),

wo uld be circumvented entirely, and airlines would be subject to distinct choice of law rules and

substantive law provisions depending upon the forum in which suit was brought. Because article 28

permits a plaint iff to bring suit where the carrier is domiciled or has a principal place of business,

where the carrier has a place of business through which the contract was made, or before a court at

the place of destination, plaint iffs, if permitted to file state law causes of action, could forum-shop

for jurisdictions with friendly substantive laws on recovery of damages for personal injury and thus

could undermine the Convention's goal of uniformity. 10 Plaintiffs could plead artfully their complaints11 Article 24(2) provides a pass-through, authorizing courts to apply the federal law that would

govern in the absence of the Convention. Zicherman, --- U.S. at ----, 116 S.Ct. at 636.

12 We disagree with Mrs. Potter that article 24 has two subparts because there are different

liability standards under articles 17 and 18. Article 24(2) was made necessary by the inability of

the Convention to provide a uniform standing law for wrongful death claimants, not because, as

Mrs. Potter suggests, article 18 imposes strict liability for damages to checked luggage, whereas

article 17 requires that personal injury stem from an "accident."

13 The Convention was first drafted at an international conference in Paris in 1925. This

protocol was revised several times by a committee of experts and then resubmitted to a second

international conference that convened in Warsaw in 1929. See Saks, 470 U.S. at 401, 105 S.Ct.

at 1343. The Supreme Court has counseled the use of the Paris protocol in interpreting the

meaning of Convention provisions. See id. to avoid characterizing the damages as resulting from an "accident," thereby creating an opt-out from

the Convention's liability constraints.

Furthermore, where the drafters of the Convention concluded that uniformity could not be

achieved, they provided expressly for recourse to loca l law. S ee Zicherman,

--- U.S. at ----, 116

S.Ct. at 634; J

ack v. Trans World Airlines, 820 F.Supp. 1218 (N.D.Cal.1993). Article 24(2), which

expressly reserves to local law 11 "the questions as to who are the persons who have the right to bring

suit and what are their respective rights," is one such provision. 12

Because, before the Convention, passengers who were injured and merchants whose goods

were damaged could sue for damages in either tort or contract, and because the Convention's express

cause of action required that these plaint iffs proceed under a contract theory only, article 24(2) was

intended to permit a deceased passenger's heirs, who lack contractua l privit y with the carrier, to

derive their standing to sue from other sources of law. S ee Jack, 820 F.Supp. at 1222. "At some

po int in the debates, the experts abandoned their attempt to include a choice of law provisio n in

Article 27 [the predecessor to article 24], and instead deleted Article 27's second half, leaving each

member nation free to determine for itself the persons entitled to assert a claim for wrongful death."

Id. at 1222-23. 13 Notwithstanding the drafters' inability to define a uniform standing provision for

wrongful death, they were careful to limit recourse to member nation's standing law only, noting

expressly t hat act io ns under article 17, "however founded, can only be brought subject to the

conditions and limits set out in this convention."In support of her argument that article 17 provides the exclusive cause of action and remedy

for bodily injury only where the injury was caused by an "accident," Mrs. Potter juxtaposes article

18's use of the term "occurrence" with article 17's use of "accident." Accordi ng to Mrs. Potter, the

terms are jurisdictional; preemption applies only where there is liabilit y under the Convention. We

disagree. The Supreme Court has interpreted the Convention's use of different terms for damages

under articles 17 and 18 to reflect a difference in the scope of carrier liabilit y: A standard resembling

strict liability attaches to damages to checked luggage, while liabilit y for personal injuries attaches

in the event of an accident only. See Saks, 470 U.S. at 401-04, 105 S.Ct. at 1343-45.

It is not axiomatic that the Convention's limitation of liabilit y for personal injury to "accidents"

connotes an intention to give plaint iffs who are no t injured in an "accident" recourse to state law

causes of action. In fact, given the Convention's underlying goals of uniformity and certainty in the

application of carrier lia bility law and its use of broad language to sweep into its ambit "all

international transportati on of persons, baggage, or goods performed by aircraft for hire," see article

1(1), quite the opposite is true.

The delegates to the Guatemala City International Conference on Air Law in 1971 recognized

as much when they approved an amendment to article 17 that would impose liabilit y on a carrier for

an "event which caused the death or injury" rather than for an "accident which c aused" the injury.

See id. at 403-04, 105 S.Ct. at 1344-45 (noting that "[t]he statements of the delegates at Guatemala

City indicate that they viewed the switch from "accident' to "event' as expanding the scope of carrier

liabilit y to passengers. The Swedish delegate, for example, in referring to the choice between the

words "accident' and "event' emphasized that t he word "accident' is too narrow because a carrier

might be found liable for "other acts which could not be considered accidents'."; and noting t hat

changes in article 17 were intended to establish "strict liabili t y") (citations omitted). Thus, we

conclude that article 17 of the Warsaw Convention creates the exclusive cause of actio n and the

exclusive remedy for all international transportation of persons performed by aircraft for hire.

V.14 To the extent that the interrogatories were intended to support Mrs. Potter's state law claims

of negligence, and because we hold that such causes of action are preempted by the Warsaw

Convention, we reject the instant challenge as moot.

15 See Doe v. Stegall, 653 F.2d 180, 184 (5th Cir. Unit A Aug. 1981).

16 The district court twice granted Mrs. Potter's motion for leave to supplement her response to

the motion for summary judgment. Finally, Mrs. Potter challenges the protective order against certain interrog atories. 1 4 She

claims this was an abuse of discretion, 15 arguing that sh e "did not have adequate time to perform

necessar y disco very to oppose Delta's motion for summary judgment" because of the protective

order.

Mrs. Potter, however, did not move for a continuance under F ED .R.C IV .P. 56(f). 16 We have

stated that "[r]ule 56 does not require that any discovery take place before [a motion for] summary

judgment can b e grant ed; if a party cannot adequately defend such a motion, Rule 56(f) is his

remedy." Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir.1990).

Some discovery was permitted. If Mrs. Potter needed more discovery in order to defeat

summary judgment, it was up to her to move for a continuance pursuant to rule 56(f). Because she

did not, she is foreclosed from arguing that she did not have adequate time for discovery.

AFFIRMED.