William H. Rehnquist: We'll hear argument now in No. 97-475, El Al Israel Airlines v. Tsui Tseng. Ms. Wilson.
Diane W. Wilson: Mr. Chief Justice, and may it please the Court: We are here today requesting the Court to hold that a multilateral treaty of the United States, commonly known as the Warsaw Convention, exclusively governs recovery for passenger injury sustained in the course of international air carriage. We are not contending for a broad right to avoid liability. We are requesting the Court to uphold the faithful reading of the convention. Ms. Tseng is seeking purely emotional distress damages as a result of being subjected to a security search, an integral and vital part of maintaining the safety and security of international air transportation. The legal issue before the Court, however, is not confined to the issue presented in her case. It is a global issue because there are over 120 nations adhering to the Warsaw Convention.
Sandra Day O'Connor: May I ask you a preliminary question that is a little confusing? The court below found that this was not an accident. Is that right?
Diane W. Wilson: Yes, Your Honor.
Sandra Day O'Connor: And we take the case on that assumption.
Diane W. Wilson: Yes, Your Honor.
Sandra Day O'Connor: And there is an article in the convention setting aside limits of liability in the case of willful misconduct, but we don't have that issue before us in this case?
Diane W. Wilson: I would submit, Justice O'Connor, you do not because the trial court found that there was no willful misconduct in the facts of this case, and that finding was not disturbed by the court of appeals, and therefore I do not believe it is before the Court.
Sandra Day O'Connor: And if there were a case of willful misconduct, then there... there would be no limit on the liability, or you would look to the law of the nation trying the case to determine that liability?
Diane W. Wilson: Justice O'Connor, we would submit that you do not reach the issue of willful misconduct if you do not reach the threshold issue of meeting the conditions under article 17. Willful misconduct wasn't intended to be read outside of the convention. If you were to do so, then you would be not reading into the convention the fact that articles 17, 18, and 19 state the instances when the carrier shall be held liable. Article 25... excuse me... article 22 limits that liability, and article 25, you lose the limit if you have willful misconduct. But if you read that there's a recovery outside of the convention that your holding is that you have an instance where you have passengers attempting to prove that there isn't an accident so that they are unable to seek damages without limit.
Sandra Day O'Connor: So, in any event in this case, we simply don't address the issue of article 25 and how that would bear on it.
Diane W. Wilson: Yes, Your Honor. There's no reason to address that in this case.
Antonin Scalia: Except that under your interpretation, we are left with the... with the surely unusual situation in which if there is a willful tort committed by a carrier, so long as it is not an accident, there is no recovery. That's... extraordinary.
Diane W. Wilson: Well, it--
Antonin Scalia: Isn't that right? I mean, isn't that the consequence of... of the interpretation you're giving to the... to the treaty?
Diane W. Wilson: --Yes, Your Honor. If you don't satisfy both conditions, bodily injury and an accident, you're not entitled to recover under the convention.
Antonin Scalia: Why would anyone write a treaty like that? I mean--
Diane W. Wilson: Well, at the time that the convention was drafted, it was 1929. The carriers were free to disclaim any and all liability, and it was a compromise to have the liability that was created under the convention to be limited except for in the circumstances provided for. So, if you allow the passengers to seek unlimited recovery outside the convention, you're creating an incentive for them to try and prove there isn't an accident so that when they don't have bodily injury, they can seek unlimited damages.
William H. Rehnquist: --But that still doesn't seem to me a good explanation for why the convention would cover accidents that really were no fault of the carrier and exclude liability for something that's intentional wrongdoing on the part of the carrier.
Diane W. Wilson: Well, they... I don't believe the drafters thought they were doing that because when they drafted the convention, they also had article 20 which was the all necessary measures defense. Although carriers that fly into and out of the United States are not entitled to avail themselves of the all necessary measures defense, that's where the fault issue really came into play. It was the unusual, unexpected occurrence as defined by Saks which would determine whether you have the accident requirement, and even if you did, if the carrier was able to establish that it had taken all reasonable measures that it could take, it wouldn't be liable. And if... it was only if you weren't able to establish that burden as the carrier, then you would have limited liability.
William H. Rehnquist: Why isn't it just as fair a reading... and granted, article 25 is not before us in this case, but when we're construing the convention as a whole, we have to have some mind for the type of thing article 25 covers... just as fair a reading of article 25 to say that the convention does permit recovery, but the limits are off?
Diane W. Wilson: To do that, I believe you have to ignore the scheme as to how the articles under the liability chapter were set forth.
Ruth Bader Ginsburg: Ms. Wilson, it might help if you gave examples of what has been considered willful misconduct. A very recent example is the KAL case; that is, it is an accident, but the conduct was found by a jury to be... to amount to willful misconduct. So, as far as I know, the cases that have come up under the convention involving willful misconduct have been categorized as accidents, and then the question is, if the conduct was so egregious, the limits on liability are off. Is there any case of willful misconduct other than the KAL pattern?
Diane W. Wilson: Well, there are the willful misconduct instances with respect to, for example, the Pan Am Lockerbie bombing. The terrorist attack of placing the bomb on board the aircraft wasn't what was found to be the willful misconduct, although it clearly was intentional conduct. The willful misconduct on the part of the carrier had to do with their security measures and their program or the lack thereof. And there are other instances in which the... there have been terrorist attacks or hijackings in which the carriers are found to be responsible in damages, but they're not held to the level of willful misconduct. And, therefore, the limit of the passengers is the limit that is applicable.
Antonin Scalia: In the Lockerbie situation, would the... would the carrier's... let's say it is willful... failure to... to have adequate security measures... would that be considered an accident so that you could come under the treaty?
Diane W. Wilson: Well, the court didn't address on point, when they reached the Lockerbie decision, the issue of whether the security measures was what triggered the accident requirement.
Antonin Scalia: Well, just tell me your view.
Diane W. Wilson: Well, my view is that the--
Antonin Scalia: Would that be an accident?
Diane W. Wilson: --Well, yes, but... but it also would have... the accident also could be the unusual and unexpected event of having the bomb placed on the aircraft, but the conduct of the carrier that rose to the level of intentional, the willful misconduct on the part of the carrier, was their security program.
Antonin Scalia: And would that be... was that an accident in your view?
Diane W. Wilson: Yes, I believe that would... could constitute an accident. I just don't think that was what the court--
Antonin Scalia: I see.
Diane W. Wilson: --was driving at in that case, Your Honor.
Stephen G. Breyer: You mean in Lockerbie they were found to have willfully defaulted in taking security measures?
Diane W. Wilson: Yes, Your Honor.
Stephen G. Breyer: They said we... we want no security. We want the risk of bombs. I mean, is that the sort of finding that had to be made?
Diane W. Wilson: No. I believe, Your Honor, that the Lockerbie decision rested more on the fact that Pan Am was charging a $5 surcharge per passenger for the heightened security that they claimed that they were providing when, in fact, it turned out that the trial showed that they had done such things as taken dogs from the local pound and pretended like they were trained as dog--
Stephen G. Breyer: They were doing nothing for their $5, in effect.
Diane W. Wilson: --Right. In fact, you could say they were misrepresenting the nature of the security they were providing.
Ruth Bader Ginsburg: Do I understand that from your point of view it doesn't matter? If this were an accident, then the district court said, yes, it's an accident, but there was no bodily injury. End of case. So, you're here contesting the Second Circuit decision, but as far as your client is concerned, categorization of an accident... as an accident would be fine. Is that--
Diane W. Wilson: Well, broadly speaking, that's true, but in the context of international security, to hold that the provision of security services is an unusual and unexpected event, I do not think would be borne out. The... we didn't need to reach that issue in this case because you need to meet both conditions in order to recover under the convention, and it was undisputed by the respondent that plaintiff did not sustain a bodily injury and that she was in the course of embarkation. So, the only issue that ended up going up insofar as the respondent was concerned when he appealed or, I should say, Ms. Tseng appealed to the Second Circuit was whether the court was incorrect in finding that the search constituted an accident. But for us to bring it up to this level, it's the... it's the broader issue of whether or not the treaty is exclusive, and if you don't meet both conditions, you don't have a right to recovery. And in this particular case, you didn't have to reach the accident issue because she didn't have bodily injury.
David H. Souter: --I suppose we ought to let you address this case. [Laughter]
Diane W. Wilson: Thank you. The... the court did not have squarely before it, until this case, the question of exclusivity, but we believe that the Franklin Mint, Saks, Chan, Floyd, and Zicherman decisions nevertheless issued a... a line of cases which should have directed the lower court to find that the convention is exclusive. In Franklin Mint, the Court recognized the dual purposes of the convention, which were to create a uniform body of aviation law and to limit the carrier's presumptive liability. In Saks, the Court broadly defined what constitutes an accident contemplated by article 17 and held that the carrier is liable to a passenger only if the passenger proves there was an accident that was the cause of the injury. Then in Chan, the Court enforced the limited liability created by the drafters and looked to the parallel notice provisions with respect to baggage and cargo to interpret the notice provision for the passenger tickets. In Floyd, the Court enforced the article 17 bodily injury requirement holding that the carrier cannot be held liable under 17 unless the accident has caused bodily injury. In Zicherman, the Court gave the most natural reading of article 24 and held that in an action brought under article 17, article 24 directs the lower court to look to local law to determine the measure of the passenger's recovery and who may bring a suit. We contend that in this case that the Court once again needs to interpret the convention as a whole and not attempt to divine what article 17 or article 24 means read standing alone. The carrier has created a clear scheme of liability to... to govern international transportation, and if you read the scheme in terms of the chapter 3 liability, the only sensible reading is that the convention was intended to be exclusive, the passenger was entitled to limited... to limited recovery if the passenger met the conditions under article 17.
John Paul Stevens: But is... do I correctly understand that your position is that it does not matter whether this is a case covered by article 17 or not? All you have to say is something happened during the course of international travel, and that's the end of the ball game unless there's recovery under article 17.
Diane W. Wilson: Justice Stevens, I wouldn't agree with that position because I do not view article 17 as determining the scope of the convention. Article 1 determines the scope. Article 17 tells when you're going to be liable--
John Paul Stevens: No, but article 17 surely is relevant to deciding whether article 24 applies, or do you think it's not relevant? Because article 24(2) says, in... starts out that in the cases covered by article 17 and so forth. And I... when I see something like that, I think, well, the first thing I've got to decide is whether or not it's covered by article 17, and I think you're saying it doesn't really make any difference whether it's covered by 17.
Diane W. Wilson: --Well, I... I don't in the sense that I say covered by 17 means that they concern passenger injury or death cases, not that it concerns whether or not you have a recoverable claim under article 17.
John Paul Stevens: Well, I still... I'm still not sure. Do you think it makes any difference in... to your case whether the case is covered by article 17 or not? And if so, is it or is it not?
Diane W. Wilson: It is a passenger injury case, and therefore it falls under article 17, but the passenger in this instance does not state a recoverable claim under 17.
John Paul Stevens: But you haven't answered my question. Is it covered by article 17 within the meaning of the treaty?
Diane W. Wilson: This passenger's claim?
John Paul Stevens: This case.
Diane W. Wilson: Yes, Your Honor.
John Paul Stevens: It is covered by 17.
Diane W. Wilson: Yes.
John Paul Stevens: I see.
Diane W. Wilson: It's covered by 17 because it's a passenger claim.
Anthony M. Kennedy: Are you saying it's covered by 17 because 17 embraces the universe of personal hurt, excluding baggage and delay?
Diane W. Wilson: Yes, I do, Your Honor.
Ruth Bader Ginsburg: In other words, you're saying--
Anthony M. Kennedy: --It covers the universe and... and in this case it is inapplicable, but it has sufficient breadth so that 24 kicks in.
Diane W. Wilson: I... I would not agree that it's inapplicable. I would say the passenger simply cannot meet the conditions that article 17 stipulates.
John Paul Stevens: See, the problem I have, this is... I want to get it on the table so you have an opportunity to... is that if you say the universe covered by article 17 is all cases, it's a little tension with the language of article 17 which describes the universe of cases in which the carrier shall be liable. But you're suggesting article 17 also covers cases in which the... the carrier shall not be liable.
Diane W. Wilson: I do suggest that, Your Honor, because I suggest that article 1 is intended to provide for all of international air transportation for passengers for hire, and article 17 I do not believe should have to have a subparagraph 2 saying that unless you meet these conditions... if you don't meet these conditions, you're entitled to sue outside the convention. I believe that if you read the language fairly, that... and you read that in relation to all the other provisions under article... excuse me... chapter 3--
John Paul Stevens: Yes, but the mere fact that article 1 says the convention shall apply doesn't necessarily mean... maybe it did... doesn't necessarily mean it shall preempt every other source of recovery. It just doesn't... in plain language, it doesn't say that.
Diane W. Wilson: --I... I believe that it does when you read the... the articles in succession, and I believe that if you... although I... I don't believe you need to refer to the drafting history, if you do refer to the drafting history, I don't... I don't think that you can sensibly read the articles to mean that the... the drafters thought they were leaving a category of cases with respect to passenger injury outside of the convention.
David H. Souter: Well, to make that clear, don't we really look outside the text? I mean, you can... you can go back to the introductory sentence of article 1.1 and I suppose still theoretically have a question open as to whether, given the applicability of the convention to... to all possible instances here, the convention may still allow, in effect, by reference to outside law, the possibility of... of a claim under domestic law. And to answer that question definitively, don't we have to look outside the text of the convention and... and consider the... the intentions that were expressed at the time this language was... was proposed and adopted? For example, the... the statement of the British representative to the Warsaw Convention, that there's no more common law. Don't we have to look to things like the no more common law statement in order to get to a definitive answer to the question that we have?
Diane W. Wilson: I believe that because treaties should be faithfully upheld, that it is appropriate to look to the drafting history in respect of the Warsaw Convention, in particular the Warsaw minutes which were transcribed by Horner and Legrez, and if you read them in total, including the comments of Sir Alfred Dennis and the reporter and various other delegates, it's clear that they were intending it to be all encompassing with respect to passenger claims. But I... I do believe that you'd be doing so to confirm the reading, which is that if you read the articles and read the structure in the scheme of the convention, the conclusion should be that the convention is exclusive.
Ruth Bader Ginsburg: I'm surprised that you don't put weight on article 24 because I thought it was that article that clarifies that the convention is meant to be exclusive for these categories, personal injury, baggage delay, exclusive of any other actions of tort... whatever it may be. And you don't get it just from article 17 in the Gestalt of the convention, but you have an exclusivity article written right into the convention.
Diane W. Wilson: Justice Ginsburg, I... I do take the position that article 24 is telling the courts that you are not permitted to look outside the convention for causes of action. I... I believe that 24 has to be read in conjunction with 17 and with 1, and... and the articles all interrelate under chapter 3, including articles 17 and 24, to reach the conclusion that you cannot have a recovery outside the convention. If there are no further questions, I would like to reserve rebuttal.
William H. Rehnquist: Very well, Ms. Wilson. Mr. Nuechtherlein.
Antonin Scalia: Mr. Nuechtherlein, do you know, going to Justice Stevens' question, I think we would have less trouble with article 17 if instead of beginning, the carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident, blah, blah, blah... I think it would be easier to sustain your case if it read instead, in the event, if it began with in the event of the death or wounding of a passenger or any other bodily injury, the carrier shall be liable if. Because then, you know, the introduction says, in the event of that's the situation covered, in the event of the death or wounding. Do you happen to know whether the French version of the treaty is structured the same way? Does it begin, the carrier shall be liable? Or does it begin, in the event of the death or wounding of a passenger?
Jonathan E. Nuechtherlein: The grammatical structure of article 17 is very similar in the French as in the English. I think Justice Stevens' question turns on the interpretation of the introductory clause of article 24 which, as Justice Ginsburg points out, is the focus of the exclusivity analysis here. And Justice Stevens was concerned that because the language in the cases covered by article 17 doesn't explicitly say in all personal injury cases, the convention is not exclusive as to some.
Antonin Scalia: That's the core.
Jonathan E. Nuechtherlein: As an initial matter, I should point out the House of Lords also thought that that was in fact the appropriate language to focus on in... in this circumstance and determined, as we believe is correct, that the framers of the convention intended that introductory clause as a shorthand to denote the class of personal injury cases generally as opposed to the class of cases involving damages--
William H. Rehnquist: The introductory clause for which article?
Jonathan E. Nuechtherlein: --For article 24. But I think the more important point--
Anthony M. Kennedy: Do you read article 17 as saying... for purposes of article 24, as saying something like in all cases covered by article 17, excluding or including liability, the provisions of the preceding paragraph apply?
Jonathan E. Nuechtherlein: --I think the introductory clause of article 24, even in its original form, was a shorthand denoting all personal injury cases. But from the Government's perspective, the more important point is this. Last week the United States ratified Montreal Protocol No. 4.
Anthony M. Kennedy: Well, we're aware of that, but just I want to be quite sure of your interpretation of the first phrase of paragraph... subparagraph 2 of article 24. In the cases covered by article 17, what... what does that mean?
Jonathan E. Nuechtherlein: That means in the class of cases to which article 17 is addressed, which is personal injury cases.
Anthony M. Kennedy: Whether or not liability--
Jonathan E. Nuechtherlein: Exactly.
Anthony M. Kennedy: --exists.
Jonathan E. Nuechtherlein: The premise of this is that if the... if a passenger cannot satisfy the conditions of liability under article 17, that passenger should not, for that very reason alone, be able to disqualify the carrier from invoking the limits of the... of the convention.
Antonin Scalia: How many smart people from how many countries came up with this... with this formulation? [Laughter] You think they--
Jonathan E. Nuechtherlein: Well--
Antonin Scalia: --could have said it more clearly.
Jonathan E. Nuechtherlein: --Again, I think it's very relevant that in Montreal Protocol No. 4, smart people from a lot of countries got together and decided to clarify the language that is in article 24. As amended by Montreal Protocol No. 4, which is about to go into effect in the United States, the introductory clause that we've all been focusing on in article 24 no longer says, in the cases covered by article 17. It now says, in the... in the carriage of passengers and baggage.
Antonin Scalia: It makes perfect sense. Now the question is whether they did that in order to change what the original treaty said or in order to correct or to make more clear what the original treaty said. How do we know that it was in order to make it more clear?
Jonathan E. Nuechtherlein: Well, the... there... there is no indication in the proceedings that led up to the change in language that anyone contemplated that this would make any difference in the exclusivity analysis. And as we point out, even under the original language of article 24, the House of Lords was correct in interpreting the introductory clause as meaning precisely what... the significance that we give it, which is that in personal injury cases, if you cannot satisfy the important conditions for liability set out in article 17, then you may not use your very failure to satisfy those conditions as a basis for seeking unlimited liability under local law without regard to the convention.
John Paul Stevens: But is it correct that the conditions for liability under 17, as you view the treaty, are simply physical harm and being in the course of international travel? There's no fault requirement, or is there a fault requirement?
Jonathan E. Nuechtherlein: Under the convention there is not a fault requirement.
John Paul Stevens: So, the only conditions you're talking about is somebody got hurt while he was on an airplane... in international travel.
Jonathan E. Nuechtherlein: If there was an accident, and that is also an important requirement. In Saks, this point... this Court pointed out that the framers of the convention deemed it essential to confine the class of cases in which passengers can recover for injuries incurred within the scope of the convention to cases in which there was an... there was an unexpected or unusual event that was external to the passenger. The framers did not want to create a liability for cases where, for example, someone has a peculiar medical reaction to the ordinary circumstances of air travel. Under the court of appeals' reading of this convention, it is precisely a passenger's failure to satisfy that important threshold requirement for recovery under the convention that entitles the passenger to escape the convention scheme of limited liability and sue for potentially unlimited liability under local law without regards to the convention. In our view, that would be very anomalous. The... the court of appeals' reasoning would also appear to apply in cases where a passenger suffered purely psychological injuries as opposed to physical injuries. Again, in Floyd, this Court determined that the framers of the convention meant to... to withhold liability in cases where a passenger could claim only psychological injury. To hold, as the court of appeals did, that a failure to satisfy article 17's liability conditions takes you outside the scope of the convention creates the following anomaly. It would mean that if you were a passenger on an airplane who was merely traumatized when the airplane drops suddenly 2,000 feet in altitude, you could sue potentially for unlimited liability without regard to the convention. Whereas, another passenger on the same airplane could... if that passenger also bumped her head, in addition to being traumatized, would be confined by... by the convention's liability caps, and that result we suggest would make very little sense.
Stephen G. Breyer: Do you have any... I couldn't find anywhere... I'll get it, but I haven't read it yet. The House of Lords says that if you look at the language of this, there... you just can't apply it literally. I mean, you lose if you apply it literally. You have to really look beyond that language and say does it forbid an interpretation that is required, says the House of Lords, by looking at the treaty as a whole. So, I don't find in one of these briefs, anywhere in an appendix, the treaty as a whole, which isn't that long. So, I don't know yet. I'll have to get it. It would have been simpler, since that's their reasoning, if I could have somewhere looked at the treaty as a whole. Am I right? Maybe hidden--
Jonathan E. Nuechtherlein: Well, the treaty as a whole is reproduced in the United States Code, and petitioner has reproduced the most important provisions--
Stephen G. Breyer: --But if you look at just provision by provision, you lose, don't you?
Jonathan E. Nuechtherlein: --I--
Stephen G. Breyer: I mean, 17 says... we're talking about instances where the carrier is liable for a... for physical injury. And then 24 says, in cases that are foreseen by... if you want to be loose about it, that's fair enough... in cases foreseen by article 17, et cetera. And in cases foreseen, well, or covered, however you want to put it, those seem to be cases of injury, physical injury. Now... now, to get out of that, there must be some flavor for the statute as a whole or something, or the treatise as a... the treaty as a whole.
Jonathan E. Nuechtherlein: --To begin with, Justice Breyer, I do not think the House of Lords viewed the text as going the other way. I think the House of Lords viewed that particular phrase as ambiguous, and that ambiguity we would point out is resolved, at least prospectively, by Montreal Protocol No. 4, which again I believe establishes the sense of the international community as to what the original language meant. The framers--
Stephen G. Breyer: I thought... what I was thinking of is the exact words. He says, in my opinion, says the judge, the answer to this question is to be found not by an exact analysis of the particular words used, but by a consideration of the whole purpose of the article. And then he spent three pages trying to set out the treaty and how you look at the whole thing and then you understand that what 17 is talking about is personal injury cases. Period.
Jonathan E. Nuechtherlein: --I think the House of Lords recognized that it would, in fact, be anomalous to allow passengers to disqualify carriers from invoking the--
Stephen G. Breyer: It would be. That's right.
Jonathan E. Nuechtherlein: --Yes.
Stephen G. Breyer: But we have some language.
Jonathan E. Nuechtherlein: And I think the House of Lords also recognized that that language was not dispositive because it was ambiguous and you do, in fact, need to look at the drafting history and the convention as a whole. But I do not think the House of Lords viewed that language as pointing in the opposite direction--
Sandra Day O'Connor: Are there any other cases from other jurisdictions of member nations to the Warsaw Convention that we can look to besides Abnett from the House of Lords?
Jonathan E. Nuechtherlein: --To my knowledge, Abnett is the only decision of the highest court of a sister signatory.
David H. Souter: I take it then you... you disagree with your fellow counsel here that the language of the... of the convention requires your result. I take it your position is that the language of the convention is ambiguous, but if you take into consideration anomaly, drafting history, and so on, your result is the... is the... is the reasonable result.
Jonathan E. Nuechtherlein: I do not think that the convention read as a whole is ambiguous. I think the introductory clause of article 24, which was amended by Montreal Protocol No. 4 to reveal its original intent, could be construed as ambiguous.
William H. Rehnquist: Thank you, Mr. Nuechtherlein. Mr. Silk, we'll hear from you.
Robert H. Silk: Mr. Chief Justice, may it please the Court: Montreal No. 4 was enacted 5 or 6 years after this incident occurred. Montreal No. 4 is prospective, as the Solicitor General pointed out in his brief. Montreal number--
Ruth Bader Ginsburg: But Mr. Silk, in the Senate report on what the... what our Senate voted on, it says in the... in the article by article explanation of Montreal 4, it says, article 24 clarifies that any action for damages, whether based on the convention or in contract or in tort or otherwise, can only be brought subject to the conditions and limits set out in the convention. That's this August, a Senate report saying that this change is merely clarifying.
Robert H. Silk: --Well, the Senate report may have said that, but the Senate report was not in effect at the time this particular incident occurred.
Antonin Scalia: I guess your position is the treaty meant what it meant, and the Senate--
Robert H. Silk: My position--
Antonin Scalia: --cannot, by later saying it meant something else, cause it to have meant something else. It either meant that or it didn't mean that.
Robert H. Silk: --Exactly.
Antonin Scalia: It seems reasonable to me.
Robert H. Silk: My... my contention is that the treaty says... means what it says, and what it means is that article 1, which defines the scope and the breadth of the convention as dealing with international air transportation, does not preclude or preempt anything, that article 20... if it did preempt everything, then article 24 would be unnecessary. Article 24 is the only preemption or the only exclusive provision for convention exclusivity that there is, and article 24, as applicable in this situation, refers only... in personal injury cases, refers only to cases covered by article 17.
Antonin Scalia: But you must admit it produces results that make the whole treaty seem quite pointless. I mean, the whole purpose of the treaty was to come to some common agreement as to the liability of carriers, and the... and the agreement that you say they signed says that in the event of personal injuries in the narrow situation where it's caused by an accident and there is physical injury, you can sue under the convention and you're limited, and in all other situations, you're remanded to whatever the local law is so that there will be innumerable divergent judgments in all sorts of different jurisdictions.
Robert H. Silk: Article 24 preempts only accident cases. This was not an accident case. This was not a case in which--
Antonin Scalia: So, your answer is yes, that's... that's a result and too bad. But, you know, I'm not inclined to interpret it that way if I'm dealing with... with a phrase that is... is merely ambiguous, in the cases covered by article 17. Does that mean in the cases in which article 17 gives relief, or does it mean in... in the cases... in the cases in which... which article 17 addresses?
Robert H. Silk: --I think the cases in which article 17 addresses. And the cases which article 17 addresses are cases which are resulting from accidents. It's so stated very explicitly in article 17. Counsel, I believe, has admitted in response to Your Honor's question that she is... agrees that this case does not involve an accident. This case does not involve an accident. That's also assumed by the questions presented for review.
Antonin Scalia: Well, sure, but why can't I say that article 17... what it addresses is damage sustained in the event of death or wounding of a passenger or any other bodily injury suffered by a passenger? That, it seems to me, is the general subject of 17.
Robert H. Silk: Except that's only true if the accident that caused the damage took place on board an aircraft in the course and so on.
Antonin Scalia: That's necessary for liability, to be sure.
Robert H. Silk: But that's... that's... that's... that modifies the entire first sentence and first clause of article 17 because the first clause says that it shall be liable for damages sustained for bodily injury if the accident which caused the damage. So, the existence of an accident is critical under the Saks case, and under... under... under all of these cases, it's a critical element.
Stephen G. Breyer: So, do you lose if I think there was an accident?
Robert H. Silk: There was no accident.
Stephen G. Breyer: I know that's your opinion, and... and this is disputed. But if I thought that there... this is an accident, that accidents refer to intentional torts as well, then do I have to decide against you in your opinion?
Robert H. Silk: I... I believe that if this was an accident, if this was an accident, which would be contrary to all--
Stephen G. Breyer: I know you don't agree with that.
Robert H. Silk: --to the meaning of an accident, if this was an accident, that's true. We would not... would not be in court.
Ruth Bader Ginsburg: So, you would not be arguing--
Anthony M. Kennedy: --Because there was no physical injury.
Robert H. Silk: Yes, there was no physical injury. That's correct.
Ruth Bader Ginsburg: Because the... article 17 requires accident plus bodily injury. So, you're not making the argument... you wouldn't be making the argument that even if this were an accident, it's still subject to State law because there's no bodily injury. Bodily injury is all that the convention covers.
Robert H. Silk: Well, I would agree that if this was an accident and not an intentional tort, that the article 17 would apply and article 24 would apply, and it would preclude the accident... anything from happening because of Floyd because the fact that the injuries were psychic and were not bodily injuries, if this was an accident.
John Paul Stevens: Mr. Silk, does that mean that your... your... I'm just trying to think this thing through... response to Justice Scalia about the anomaly is that there is total preemption of State law causes of action in accident cases that do not result in physical harm?
Robert H. Silk: Yes.
John Paul Stevens: So, there would be... a category of common law causes of action would be... would be preempted by the treaty.
Robert H. Silk: Oh, yes.
John Paul Stevens: Even though there's no recovery in those cases.
Robert H. Silk: Oh, yes, I would certainly agree with that. But the critical question is the one that was decided by the Second Circuit that this was not an accident. And the Second Circuit based its decision on... on the... on the Saks case principally and on all of the cases--
Antonin Scalia: Why do you... why do you insist that only the necessity of an accident is part of the... of the limitation in 17? Why not also death, wounding, or other bodily injury? I mean, isn't that a condition just as much as the existence of an... of an accident?
Robert H. Silk: --It's only a condition if it's an accident caused it.
Antonin Scalia: Well, I can--
Robert H. Silk: And that's what it says in article 17.
Antonin Scalia: --I can also say the... the... the accident is only a condition if... if there's death or... death or wounding or any other bodily injury. I mean, they're... they're parallel conditions, it seems to me.
Robert H. Silk: Well, if that was intended to be the case, then the convention would have been written in a different way. Article 17 was not written that way. Article 17 predicated liability for death or wounding or bodily injury only if there was an accident.
Antonin Scalia: That's right, but it also... it also only predicated liability for death or wounding or other bodily injury. So, you could say it's only limited to that too. So, if it isn't death, wounding, or bodily injury, if it's just... just psychic injury, even in the event of an accident, you can sue under State law.
Robert H. Silk: Well, I believe that the convention intended to include only accidents in article 17 and intended to include everything else under article 18, which is exactly what the Saks case said, and it's exactly what the Solicitor General argued in the Saks case in the Solicitor General's brief amicus. And the brief amicus of the Solicitor General, which I would recommend to this Court as a good text for this subject matter... in the Solicitor General's brief they emphasized the importance and the critical necessity that there first be an accident, and an accident is defined as something which is unforeseen, which is--
William H. Rehnquist: Where is accident defined in... in the treaty, Mr. Silk?
Robert H. Silk: --Accident... accident is not defined in the treaty, but accident is defined in the treaty, if you look at the French, which means... which is the original language of the treaty, and they use the word l'accident or... I don't know if I'm pronouncing it right.
William H. Rehnquist: Well, neither do I.-- [Laughter]
Antonin Scalia: Close enough.
Robert H. Silk: And... and I'll give you another one. They... they use the word l'evenement, which means an... an incident or an occurrence, in article 18. An incident or occurrence could include an intentional wrong, but an accident excludes an intentional wrong. And therefore intentional wrongs were not intended to be covered by article 17, and therefore--
Antonin Scalia: You know, I... I wish... I... I want to join... was it Justice Breyer who complained about the fact that both sides are arguing all different sections of the treaty, and the only ones that are reproduced in the materials we have in front of us are 1, 17, and 24. I don't know why they... it's not that long a treaty. The whole thing could have been reproduced so that we could have seen it in its... in its entirety. I really... sure, it's in the United States Code. I don't have the United States Code at home when I'm reading the briefs. I assume that all of the essential materials are going to be in front of us.
Robert H. Silk: --Well, I... I--
Antonin Scalia: We're talking about 18. We're talking about a lot of other provisions, and I... you know, that's very interesting. Where do I look them up?
David H. Souter: But on the other hand, you benefit somewhat--
Robert H. Silk: --Article 17 is in... is in the petitioner's supplemental brief. Article... article 24 is in the petitioner's supplemental brief.
Antonin Scalia: --Oh. 1, 17, and 24 are in the petitioner's brief.
Robert H. Silk: Right.
Antonin Scalia: At the beginning, and 18 is somewhere. I'm not sure where it is, but--
Anthony M. Kennedy: --You agree that an important class of... of injuries, of torts, are excluded by this treaty and that there can be no State cause of action. What would be the purpose of a treaty under your interpretation if this really relatively less consequential kind of tort was... was not also excluded? How do you respond, in other words, to Lord Hope's opinion that the whole structure of the treaty dictates a holding against you?
Robert H. Silk: Because I see nothing in the structure of the treaty that says that the... that a... that would indicate that a willful tort, an assault and battery and a false imprisonment, committed by an airline against a passenger is something which is inconsequential or which could be included or excluded. It doesn't even touch the subject. There is not a word in the convention that I know of which speaks of the type of tort and the type of willful wrongdoing which occurred in this case. Now, article 1 says that the convention covers the whole area of space, but it... it preempts nothing.
William H. Rehnquist: Article 25.
Robert H. Silk: Article 25, but article 25 is good for the respondent in this case.
William H. Rehnquist: You said that nothing in the convention covered--
Robert H. Silk: I will withdraw. You're right, Your Honor. The only place in the convention where willful wrongs are... such as the kind which occurred in this case is mentioned is article 25. Article 25 doesn't give a right to a cause of action but it says nothing in the convention shall restrict and prevent a cause of action.
Sandra Day O'Connor: --But I thought, as the case came to us, we had to assume that article 25 isn't before us, that we take the case as though it isn't willful misconduct under article 25. Am I wrong?
Robert H. Silk: As the case came before this Court, the petitioner did not mention article 25 in the petition. That's correct. And in opposition to the petition, there was particularly no reason to address article 25--
Sandra Day O'Connor: Well, and there was a finding below that it wasn't willful misconduct?
Robert H. Silk: --No. The finding below was that it was not such willful misconduct... such willful misconduct as to come in under article 25, which is a conclusion of law. This is not a statement of fact, and this is not a fact finding--
Sandra Day O'Connor: Okay, but there was no cross petition on that.
Robert H. Silk: --We weren't aggrieved. The... the respondent was not aggrieved at all by the final ruling, and there was really no need to... to burden this Court with a cross petition on an academic subject.
Anthony M. Kennedy: Well... well, but as the case comes to us, willful misconduct is definitely excluded by the treaty. Serious accidents are sometimes limited because of 17 and... and Saks and Floyd. But you have this narrow class of cases which you say is not... is not covered by the treaty.
Robert H. Silk: Well, willful misconduct--
Anthony M. Kennedy: And it seems to me that that's inconsistent with the whole design of the treaty to limit the liability.
Robert H. Silk: --Willful misconduct is covered by the convention only to the extent that nothing in the convention shall limit or exclude... exclude such a case.
Anthony M. Kennedy: But that isn't this case.
Robert H. Silk: Well, we're talking about excluding such a case, and if there's nothing in the convention to exclude my case, then I go ahead.
Stephen G. Breyer: Yes, but--
Robert H. Silk: Article 25 is fine.
Stephen G. Breyer: --Let me ask you about... because I've now seen the whole treaty, as Justice Thomas had the... if you look at the treaty as a whole... and I think this is what the English court was doing... it's saying, look, there's one section here, section 3, which says, airlines, you cannot limit your liability in a contract and you give that up. And then section 4 says, but in return for that, you're going to be liable in the following ways, and then it lists a whole bunch of them with qualifications. And in that context, all that article 24 meant was it meant to refer to the three kinds of liabilities or situations you may have, to people, to luggage, and for delay.
Robert H. Silk: Yes.
Stephen G. Breyer: And that's all it meant. And if you don't read it that way, you get into a terrible mess. You get into the mess, for example, that a flight attendant who hits somebody in the face and she says it was an accident or the... the passenger says, no, no, she did it on purpose, or... or you have somebody suing in a State court because the air that's recirculated has germs in it and they know that the germs will, in fact, give colds to a certain percentage of people, or they serve coffee that's too hot and they know that a certain percentage of people are going to get sore throats because the coffee is too hot. I mean, there could be millions of cases, and you're very... you know, the bar is very imaginative, and they'll find terrific cases. [Laughter] And so our choice is you either read it vaguely to just refer to passengers, luggage, and delay, or you read it precisely by the language and we get into the situation with your case and many such others are allowed. But the English court says, that's the choice. We think really the language isn't perfect, but you... they took that choice. So, now, what is your... your... your response?
Robert H. Silk: My view on the Abnett case, or the English case, the House of Lords case, is that the House of Lords case did not deal with the kind of willful problem that we have in my case. The House of Lords was dealing with a situation which was completely accidental to the airline and it was... it was a breach of contract of passage or negligence in landing in Kuwait at the time that the plane did land in Kuwait, but it did not deal at all with the kind of common law tort... willful torts, that we have in this case. It just wasn't dealing with it. So, the English court can go ahead and say whatever it wants with respect to the kind of cases that they were dealing with, but the fact problem before that court is totally different from the fact problem before this Court.
Sandra Day O'Connor: Oh, but there's no doubt at all in reading that opinion that, faced with this case, they would have come out the same way. There's... I mean, that's how they construed the treaty is to be an overall... overarching purpose to govern exclusively liability of international air.
Robert H. Silk: My only answer to that would be that the treaty governs what it governs, and the treaty... the language of the treaty spells out what it does govern. It's true that the treaty could govern an intentional wrongdoing such as we have in my case, but it doesn't. It uses the word accident deliberately and it uses the word event or occurrence in article 18 in a deliberate way as this Court pointed out in the Saks case. I do not see anything in the treaty which anywhere near... comes near to governing this case. It's certainly not an accident. The very question before this Court right now, which... upon which the Court granted certiorari, the very question is assuming this is not an accident, if it's not an accident, then is it covered? So, we can't assume that it's covered in any way by article 17.
Ruth Bader Ginsburg: That was the same assumption that the House of Lords made, and I think that they felt a certain discomfort in that too because they said, we have to take this case on the basis that it was no accident. It wasn't an accident, and so then what follows? You keep characterizing this as an intentional tort and clearly not an accident, and yet not only... was it Judge Gleason? There was another earlier case involving a misfired security check, and district judges said, yes, that sounds like an accident to us. They went through their routine security procedure. They... it misfired in this case. The profile indicated the wrong person. Why is it so clear that that isn't an accident, that picking... going through the normal procedures but having the procedure misfire isn't an accident?
Robert H. Silk: But this procedure in my case did not misfire. The procedure in my case went precisely the way it was intended. It was a routine. It was intended. It was a security check. And I will say that the airline had a right to conduct the security check. They had a right to do it, but they didn't have a right to do it without the consent of my client. And without the consent of my client, just as a doctor has a right to perform surgery, he doesn't have a right to do it without the consent of his patient, the airline here did not have a right to conduct a security check without the consent of my client. If my client didn't want to consent, then my client would have been barred from boarding the plane by the Federal regulations.
Ruth Bader Ginsburg: Is that a fact question? Does the airline dispute that?
Robert H. Silk: No. The airline does not dispute anything at all. The issues in this case are free of factual problems or factual complications. The airline does not dispute it. The... in... in my... in the respondent's brief, in the statement of the case, it was pointed out... the testimony was even gone through, I believe, verbatim as part of the... of the statement of... of the case. And it pointed out that my client didn't consent. She wasn't asked to consent. She was overwhelmed and so on by the authority which was exhibited by the security people, and they didn't ask her consent. The Federal regulation says that if she doesn't consent, then she cannot board the plane. All the security problems are taken care of.
Ruth Bader Ginsburg: I thought that would be kind of something to which the airline would demur in the district court because the airline's case in the district court was, no bodily injury, end of case.
Robert H. Silk: They didn't. They had factual testimony and their factual testimony was to the effect that what they did in her case was part of their routine and--
Ruth Bader Ginsburg: Was there a trial in this case?
Robert H. Silk: --Was there what?
Ruth Bader Ginsburg: A trial.
Robert H. Silk: Yes, there was a trial in this case. There was a trial in this case before Judge Stanton in the Federal District Court in the Southern District of New York. And in that trial, the liability issues were proved and part of the damage issues were proved, that is, to the extent that my client testified to the suffering and to the--
Ruth Bader Ginsburg: When you said proved, were there findings of fact?
Robert H. Silk: --No, no. When I say proved, I mean prima facie proof. There was testimony. There was testimony concerning all of these things, cross examination, testimony, cross examination. El Al put on witnesses, and... and the judge said... I think he said, do you have anything else, and I said, yes, I have psychiatric testimony to put on to show psychiatric injury and causal relationship and so on and so forth. And the trial judge said, you don't need to do it because if the only problem is psychic, it's being dismissed under Floyd. And I said, but... and I argued there that... that this was not an accident and Floyd applies only to accidents under article 17, and the judge said, yes, it was an accident because she turned out not to be a terrorist. So, what the judge did was saying because she was innocent, she therefore cannot prevail because that was an accident that she was examined like that.
David H. Souter: I thought Judge... the... I'm not sure of this factual thing. That's what I want. El Al says, look, she didn't object to the search and she never asked to leave the room, and anybody would know that if you want to go home, you go home. It's only if you want to go on the flight that you have to be searched. So, that's their position.
Robert H. Silk: Yes.
David H. Souter: And I take it your position was that they had a legal duty to say to her, now, if you object to the search, you can go and leave the room.
Robert H. Silk: Yes.
David H. Souter: Is that... was that--
Robert H. Silk: Yes.
David H. Souter: --And is there a finding on whether... I guess that's a legal question.
Robert H. Silk: There was no finding.
David H. Souter: There's no finding.
Robert H. Silk: There was no finding at all.
David H. Souter: So, is that relevant at all to us? I mean, what are we supposed to take? I... I... we have to take that she never objected to the search. We have to take that she never asked to leave the room. We have to take that they didn't tell her she could object to the search, and then where are we? What are we supposed to do?
Robert H. Silk: Well, I think that that is not the question before this Court. I think that that is not the question before this Court. And I just want to say that that question was not raised really in the petition for certiorari and is not a question before this Court. In the Phillips case, which this Court recently decided, I believe the Phillips court said that... this Court said that only questions set forth in the petition--
David H. Souter: I agree with you. I agree with you on that.
Robert H. Silk: --may properly be used.
David H. Souter: It's irrelevant.
Robert H. Silk: It's only relevant when... when I think they raised the red flag that this involves a security problem and... and they have to be able to protect their security, which I think is... is sham argument because they could easily have protected their security by giving her a choice.
Ruth Bader Ginsburg: Mr. Silk, on the question Justice O'Connor asked earlier in the argument, is there any precedent from other... another court other than the House of Lords that interprets article 17 in context of article 24 in context of the whole treaty?
Robert H. Silk: Justice Ginsburg, I have tried to find any other precedents. I don't think the House of Lords precedent is a precedent because I don't believe that it deals with--
Ruth Bader Ginsburg: Just let me amend the word to be decisions, court decisions.
Robert H. Silk: --I know of none which involve this kind of situation. And I... I... in security checks or in any other... in any other context where an assault and battery or a false imprisonment was the subject of the action, of a common law action, and the question of the convention arose.
Sandra Day O'Connor: There was a New Zealand case--
Robert H. Silk: I just didn't know--
Sandra Day O'Connor: --was there not, but it involved goods not a passenger, and the New Zealand case took the same position as the House of Lords?
Robert H. Silk: --I don't know.
Sandra Day O'Connor: I think so.
Robert H. Silk: I just don't know. Incidentally, if the New Zealand case would... would involve baggage and not passengers, security, then 24(1) and not 24(2) would apply, and 24(1) does not refer to... under article 17. It refers to article 18--
Sandra Day O'Connor: No, but the question was the exclusivity of the treaty. And I think there was also a case from Singapore.
Robert H. Silk: --But article--
Antonin Scalia: 24(1) uses the same critical phrase, in the cases covered by, in the English version.
Robert H. Silk: --Right, but by article 18 and 19.
Antonin Scalia: Right, but the same issue would arise. Does in the cases covered by mean in those cases where there is liability under or does it mean in the universe of situations envisioned by? And these cases, as Justice O'Connor suggests, say that it means the latter.
Robert H. Silk: I... I would like to suggest, if I may, that article 17 is a liability provision. It is dealing with liability. Its whole focus is liability. Its focus is not just passengers. Its focus is liability.
Antonin Scalia: What about 18? Does 18 begin the same way, the carrier shall be liable for damage, or does it begin differently? We don't know.
Robert H. Silk: Article--
Antonin Scalia: It's in the United States Code, I guess, somewhere. [Laughter]
Robert H. Silk: --Article 18--
Speaker: Yes, yes.
Robert H. Silk: --I believe it does then, overhearing counsel here saying yes, so it probably does.
Anthony M. Kennedy: Well, it does but the difference in 17 and 18 is 18 doesn't refer to an accident.
Robert H. Silk: It refers to an occurrence.
Anthony M. Kennedy: Yes.
Robert H. Silk: And it's much broader, and it would include... if that word were used in article 17--
Anthony M. Kennedy: Which, it seems to me, helps you.
Robert H. Silk: --If that word were included in article 17, it would... it would hurt me because article 17 would be... would... would say that... that... if it was an occurrence, it would fall under article 17, and if it fell under article... if article 17 used the word occurrence, this event would have fallen under article 17. And therefore it would have been precluded by article 24 too. It would have been precluded. But article 17 does--
Anthony M. Kennedy: Right.
Robert H. Silk: --not say occurrence, and that is very helpful--
Anthony M. Kennedy: Which is what helps you.
Robert H. Silk: --That helps me, right. And the Saks case points out the very important difference of language between article 17 and article 18, and in Saks and also... not only in Saks, but the Solicitor General and the Solicitor General's brief amicus in the Saks case. It writes practically a textbook on this subject in which he points out the difference between the usage of... of the word for occurrence in article 18, the French word for occurrence in article 18, and the French word for accident in Article 17. They make a world of difference.
Ruth Bader Ginsburg: Mr. Silk, you started your argument by saying the Montreal Protocol is prospective.
Robert H. Silk: Yes.
Ruth Bader Ginsburg: Do you think it changes anything with respect to a case like yours?
Robert H. Silk: Well, it would change it if my case had occurred 6 years after it occurred and Montreal Protocol No. 4 was in effect at the time.
Ruth Bader Ginsburg: Suppose we had a case identical to yours that happens today. What is the result?
Robert H. Silk: Well, if it happened after Montreal 4 became effective--
Ruth Bader Ginsburg: Yes.
Robert H. Silk: --which would be in a few months, I think--
Ruth Bader Ginsburg: Yes.
Robert H. Silk: --I mean, if that's what Your Honor means.
Ruth Bader Ginsburg: Yes.
Robert H. Silk: Okay. My case would be out the window, I think.
Ruth Bader Ginsburg: Thank you.
Robert H. Silk: But my case cannot be out the window because Montreal 4 is prospective and it's not retroactive, and has practically been conceded by everybody, nobody has really claimed that it's retroactive.
Ruth Bader Ginsburg: The question is whether it's something new or whether it's clarifying.
Robert H. Silk: Well, it's clearly new because in article 24 as it was, it says, in cases covered by article 17. Now, article 24 under the Montreal Protocol says, in the carriage of passengers and baggage, any action for damage, however founded, can only be brought subject to the conditions of this... of this convention. And the words under article... covered by article 17 are completely out.
Ruth Bader Ginsburg: So, for the future, there's no problem. So, you're... you're saying that your case is one of these prior law cases and there are too many of them. Is that your view?
Robert H. Silk: I don't know of any of them.
Antonin Scalia: We should just leave them alone and stop worrying about it all. Right?
Anthony M. Kennedy: Did I understand that your-- [Laughter] Did I understand you to suggest that the Government's position in its brief in Saks is inconsistent or at least in tension with what it's arguing here?
Robert H. Silk: I... I believe so because the Government in this case has been arguing that this is some kind of an accident, and accident can be broadly interpreted. They have done so in their brief. The word accident can be very broadly interpreted to include a multitude of sins, whereas in the... in the brief in the... in the Saks case, they very... they say accident is very narrow. And I'm answering your question, but--
William H. Rehnquist: Yes, but I think you've... you've answered it.
Robert H. Silk: --All right.
William H. Rehnquist: Thank you, Mr. Silk.
Robert H. Silk: Thank you, Your Honor. Thank you.
William H. Rehnquist: Ms. Wilson, you have a little more than a minute remaining.
Diane W. Wilson: Your Honors, I would just like to make two brief points. One is that the court below specifically found that there was no willful misconduct in this case, and that's referenced at page 27 of the appendix to the petition. And also that accident can encompass intentional torts. That's what article 25 can look to. It is only if you have willful misconduct that you get an unlimited recovery. Accident wasn't ever meant to mean unintended. I also would note that you should meet the terms and conditions of article 25. You have to meet the terms and conditions of article 24. There is a symmetry there. And with respect to the issue of article 18, I believe that the fact that the liability is broader in scope with respect to baggage and cargo should not mean that if... where you have a narrower scope of liability under the convention, you then get to get recovery outside of the convention. Thank you.
William H. Rehnquist: Thank you, Ms. Wilson. The case is submitted.


Earl Warren: Number 103, National Labor Relations Board, Petitioner, versus Truck Drivers Local Union Number 449 et al. Mr. Manoli.
Dominick L.Manoli: If the Court please, this case is hereon writ of certiorari to the Second Circuit Court of Appeals. The court below dismissed an order of the Board, to set aside an order of the Board, dismissing a complaint involving that the employers involved in this case had laid off their employees in violations of the -- violation of the National Labor Relations Act. The question presented in this case is whether a group of employees who have been dealing with the Union representing their employees through an association for the purpose of arriving in an agreement covering all of the employers may lawfully suspend operations without violating the National Labor Relations Act. When the Union strikes, one of the employer members of the Association and that strike carries with it the implicit threat of -- of successive strikes against the other employer members of the Association. The facts in this case were stipulated by the parties and I may very briefly summarize them. The employers in this case are some linen supply companies located in Buffalo, Dunkirk, and Niagara Falls, New York. They are linen supply companies and I suppose another word might be the term, laundries. They each employed truck drivers ranging in number from two to 22 -- 22 men. These truck drivers in turn are represented for purposes of bargaining by the respondent Union. And the employers here have been represented for some 13 years for purposes of collective bargaining by an association called the Linen and Credit Exchange. The Linen and Credit Exchange had carried on negotiations with the respondent Union and the practice has been during these past 13 years for the Association and the Union to negotiate -- seek to negotiate an agreement. In the event that they arrived at such an agreement, then this agreement is in turn submitted to the employer members of the Association. And if a majority of these employer members of the Association approved that the agreement then all of them signed. Now, in March of 1953, the Association and the Union, consistent with this practice, entered into negotiations for a contract to succeed the existing of current contract which was to expire in April of that year. They negotiated for several weeks and after several weeks of negotiations, they were unable to arrive in an agreement. And in May, sometime in May, the Union called a strike against the Frontier Linen Supply Company. The Frontier Linen Supply Company is one of the eight employer members of this Linen Exchange -- Linen and Credit Exchange of this employer bargaining association. And thereupon, the Union placed the picket line around the premises of the Frontier Linen Company. The other -- the employees of the other employers remained at work but on the following day, however, the other seven employer members of the Association suspended operations, laid off their employees and at the same time, they notified the -- they notified the respondent Union that they would resume operations when the Union called off its strike against Frontier and also remove the picket line at that place. Following the calling of the strike against Frontier by the Union, and following the suspension of operations by the other seven employer members of the Association, the Union and the Association continue to bargain, continue to negotiate for the purpose of arriving in an agreement. And within the week, or by the end of the week, they did arrive in such an agreement which was satisfactory to the employers, and thereupon, the Union called off the strike and the -- all of the-- all the seven employers who with suspended operations, as well as Frontier Linen Company, resumed operations and the men returned to work. The Board and the court below, upon these facts, agreed that the strike against Frontier, one of the eight employer members of the Association, carried with it the implicit threat of successive strikes against the other employer members of the Association. The Board concluded that this selective whipsawing strike technique was calculated to destroy the employer solidarity, the employer collective bargaining position if you will, which is the -- which in the Board's view is the principal purpose for their entering into this multi-employer bargaining relationship. In the Board's view, this unity, the preservation of this collective bargaining position is entitled to protection under the statute, and to that end, the employers against whom -- the employers may suspend operations and counter with concerted action, the selective strike by the Union against one of their members, the purpose of which, of course, is to bring about a capitulation of the entire group. The court below, on the other hand, disagreed with this conclusion on two grounds. First, it concluded that the strike against Frontier was tantamount to a withdraw by the Union from the multi-employer bargaining relationship which had existed for some 13 years. On that premise, the Court said there was no basis for differentiating between an individual employer and an employer who is the member of an association that, in either case, where an employer suspends operations in anticipation of a strike, he is engaging an unfair labor practice within the meaning of the federal -- of the National Labor Relations Act. Secondly, the Court, meeting the Board upon its own ground, concluded that the employers' interest in preserving their solidarity and preserving their bargaining position as against the Union was not -- has not been given -- given a such recognition by the National Labor Relations Act as to permit the accommodation in which the Board has made in this case. Accordingly, the court below, as I've indicated before, set aside the Board's order would dismiss the complaint against the employers here and remanded the case to the Board. Now, at the outset, I think, in order to understand more clearly the issue which is involved in this case, I think it is important to deal with the initial premise of the decision below, namely, that the strike called by the Union against the Frontier Company was tantamount to a withdrawal by the Union from the multi-employer bargaining relationship with the employers, and that on that basis, this -- the lockout here was not to be differentiated from a lockout by an individual employer who is not a member of an association and who suspends operations in anticipation of a strike. The Board itself did not reach that issue in this case?
Speaker: In fact, it reserved this issue on the question of the legality of a bargaining lockout in the hands of an individual employer who is not a member of an association.
Speaker: What's your view about that? I noticed one of the amicus briefs makes a very strong argument. There's nothing wrong in that.
Dominick L.Manoli: Well, Your Honor, the Board reserved their decision in this case and hasn't come to grips with it. And I, as the spokesman of the Board, I have no views until the Board speaks on that matter. But whatever the answer may be to that, Your Honor, I don't think that we have to reach that question in this case, because on the basis of the record in this case, it is unnecessary to determine whether or not a lockout by a single employer gives or is not an unfair labor practice under the statute. The record in this case shows that after the Union called the strike against Frontier, it continued to negotiate with the Association and finally arrived in agreement with the Association for all of the employers. There is no suggestion in this record that the Union fall under strike against Frontier attempted or sought or intended to reach individual agreements with the various employers as might have been the case if the Union had sought to withdraw from this relationship which had existed for some 13 years.
William J. Brennan, Jr.: Well tell me Mr. Manoli, as I gather it, the Board power that -- actually, this was a whiplashing technique, I think --
Dominick L.Manoli: That's right.
William J. Brennan, Jr.: -- per se. And the Court said that on the contrary that it was a withdrawal --
Dominick L.Manoli: Right.
William J. Brennan, Jr.: -- from the arrangement. Now are they fact findings?
Dominick L.Manoli: No, sir. I think the court below said in effect that a strike, in these circumstances, is as a matter of law a withdraw by the Union. And then in connection with that, you may --
William J. Brennan, Jr.: Well, when you don't urge that those are contrary to finding a fact in -- by the Court from that which by the Board?
Dominick L.Manoli: No. I -- I'm emerging that -- that the Court aired in viewing the strike as a withdraw that realistically the strike must be viewed as nothing more than simply a tactical maneuver on the part of the Union by the selective -- by selecting each employer -- each employer one at a time as a tactical maneuver to exploit the Union in order to obtain capitulation by the entire group. Now, the issue, therefore, as we see it in this case is whether a union which has been bargaining upon this basis may squeeze the advantages out of this relationship and at the same time pick all of each employer one at a time without covering joint concerted action on the part of the employers. Now, the Board, originally, on this issue in the Morand case held that it was an unfair labor practice for the employers to suspend operations in anticipation of such a strike. Three Circuit Courts of Appeal that dealt with that issue disagreed with the Board and held that such in a lockout is a call or suspension of operations was not an unfair labor practice. The Board reconsidered this whole problem in this case and has arrived at the conclusion that a suspension of operations by these employers who are members of a multi-employer bargaining association is a lawful and permissible defensive weapon as against these -- these selective -- the selective whipsawing type of strikes which as I've said is calculated to exploit the Union in order to bring about the capitulation of the entire group. Now, I hardly need that, I think after little words that the answer to this very chronic question has been -- is a difficult one, it certainly has been a difficult one for the Board.But nevertheless, as the Board now sees the issue, we think that the resolution of this question cause for an accommodation of the employers' interest in preserving their bargaining position, in preserving the integrity of the -- of their multi-employer bargaining relationship and interest which I -- so later show, we think, that the statute recognizes as one entitled to protection and, as they say, in accommodation between that interest and on the other hand the employees right to strike which, of course, the statute also protects.
Felix Frankfurter: We had -- closing up in the second -- Mr. Manoli, in your brief -- I'm just asking --
Dominick L.Manoli: Yes, sir?
Felix Frankfurter: -- is the other equal protection and criminal -- do you set forth the whole history of this problem or is there any place that this must have a considerable history to strike, does it not?Is that set forth in your brief and is there any -- I gather from my own reading of the past, they're -- they're not of the few that living the literature of a right --
Dominick L.Manoli: Yes, sir.
Felix Frankfurter: -- now, would you mind indicating that one doesn't -- want to get the whole carload, whether the two or three -- there's discussion of the -- being apart from -- as -- as the Board (Inaudible)
Dominick L.Manoli: Your Honor, in the Morand case, the Board dealt with this problem at some length.We have cited that in our brief. We've also cited the Court's decision --
Felix Frankfurter: What's the name of that case?
Dominick L.Manoli: The Morand case.
Felix Frankfurter: That give the history before the Board.
Dominick L.Manoli: That's right.
Felix Frankfurter: And I take that your brief will give the history before the Court.
Dominick L.Manoli: We have first set forth the various cases --
Felix Frankfurter: It's a number of decisions as I recall.
Dominick L.Manoli: Yes, we've set those forth in our brief. We have also --
Felix Frankfurter: Outside of that thing academically or inform them that you -- what is there that you would recommend one to read?
Dominick L.Manoli: I would recommend two articles, Your Honor. One is by Professor Koretz which is cited in our brief, and recently there was a --
Felix Frankfurter: (Inaudible)
Dominick L.Manoli: The Syracuse University. That's right. It's cited in our brief, both articles. He wrote two articles, the Lockout and then the Lockout Revisited. And the second one which I think is very valuable, Your Honor, and I've only come across it just recently. It's the Chicago -- the latest edition of the Chicago Law Review. There is an article by Professor --
Speaker: Meltzer.
Dominick L.Manoli: Meltzer,
Speaker: Yes.
Dominick L.Manoli: Professor Meltzer and I think you --
Felix Frankfurter: That -- that this is the latest number? It -- it just come out.
Dominick L.Manoli: It just come out, that's right. I read it only last week.