AND KEETON ON TORTS § 2 at 9-15 (5th ed. 1984)). The fundamental differences between these two types of damages make it very unlikely that the Supreme Court intended to implicitly overrule the earlier case law on punitive damages by discussing in Zicherman the availability of various types of compensatory damages.
The plaintiffs argue that even if Zicherman did not directly overrule the earlier cases barring punitive damages, it undermined the reasoning of those cases. In this, the plaintiffs are only partially correct. The earlier cases were based upon several sources: (1) the language of Article 17, the provision of the Warsaw Convention that fixes the parameters of carriers' liability under the Convention; (2) the intent of the Convention's creators, as reflected in the drafting history of the Convention, including commentary on the scope of the Convention; (3) the state of French law at the time the Convention was created; (4) the goal of uniformity, one of the principal purposes of the Convention; and (5) the nature of the Convention as a balance between presumed liability on the part of the carriers and limited recovery by claimants. See KAL, 932 F.2d at 1485-90; Lockerbie, 928 F.2d at 1280-82, 1287-88; Floyd, 872 F.2d at 1483-88; Gander, 684 F. Supp. at 930-33. In Zicherman, the Supreme Court criticized reliance on two of these sources: the historical substance of French law; and the goal of uniformity, at least insofar as that goal is treated as an overriding concern. See Zicherman, 116 S. Ct. at 633 (courts interpreting the Warsaw Convention may look to 1929 French law to determine the appropriate translation of the words of the treaty, but should not consider themselves bound by French law in applying those words to the facts at hand) and 636 (rejecting uniformity as a reason to create a federal common law of damages to be applied to Warsaw Convention claims; "this [damages] is not an area in which the imposition of uniformity was found feasible" by the treaty's signatories).
Even without these two bases of support, however, the case law denying punitive damages in Warsaw Convention claims remains fundamentally sound, in this Court's opinion. And when faced with the same question of punitive damages, this Court reaches the same conclusion those courts did. This conclusion is based upon many of the same sources relied upon by the earlier cases: the language of Article 17, which "establishes the liability of international air carriers for harm to passengers" and is "entirely compensatory in tone," Gander, 684 F. Supp. at 931; the dearth of any evidence indicating that the treaty's drafters contemplated that carriers were or could be liable for punitive damages; and the overall scheme of the Convention as a trade-off establishing a presumption of liability by the carrier in exchange for limited damages, a scheme that could be upset by the unpredictable nature of punitive damages awards.
All of these reasons have been covered in great depth by other courts, and we see no need to reproduce their efforts here. Therefore, for the reasons stated briefly above and set forth in more detail in KAL, Lockerbie, Floyd and Gander, we hold that punitive damages are not available in claims governed by the Warsaw Convention.
The Court grants defendant Simmons Airlines' motion for summary judgment on the punitive damages counts in Warsaw Convention cases [463-1].
United States District Judge
April 7, 1997