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UNITED STATES DISTRICT COURT DISTRICT OF MAINE

ALICE CONWAY, PLAINTIFF v. UNITED AIR LINES, INC., DEFENDANT

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Civil No. 96-207-P-H

ORDER ON RECOMMENDED DECISION OF THE MAGISTRATE JUDGE

The United States Magistrate Judge filed with the court on May 15, 1997, with copies to counsel, his Recommended Decision on the Defendant's Motion for Summary Judgment. Objections to the Magistrate Judge's Recommended Decision were filed by both the defendant and the plaintiff on May 29 and May 30, 1997, respectively. I have reviewed and considered the Magistrate Judge's recommended decision, together with the entire record; I have made a de novo determination of all matters adjudicated by the Magistrate Judge's recommended decision; and I concur with all of the recommendations of the United States Magistrate Judge with one exception for the reasons set forth in his recommended decision, and with the following modifications and observations.

ABSENCE OF COMPLETE PREEMPTION BY WARSAW CONVENTION

The Circuit caselaw is divided and the Supreme Court and the First Circuit have not spoken on the question whether the Warsaw Convention1 completely preempts the field of airline liability for injuries occurring on board airplanes. Compare Potter v. Delta Air Lines, Inc., 98 F.3d 881, 88487 (5th Cir. 1996), and Boehringer-Mannheim Diagnostics, Inc. v. Pan American World Airways, Inc., 737 F.2d 456, 458-60 (5th Cir. 1984), cert. denied, 737 F.2d 1186 (1985), with In re Air Disaster at Lockerbie, Scotland, 928 F.2d 1267, 1273-78 (2d Cir), cert. denied, Rein v. Pan American World Airways, Inc., 502 U.S. 920 (1991), Abramson v. Japan Airlines Co., Ltd., 739 F.2d 130, 133-35 (3d Cir. 1984), cert. denied, 470 U.S. 1059, and reh'g denied, 471 U.S. 1112 (1985), and In re Mexico City Aircrash of Oct. 31, 1979, 708 F.2d 400, 414 n.25 (9th Cir. 1983). Certainly a case can be made for the Fifth Circuit's conclusion in Potter, 98 F.3d at 885, that the Warsaw drafters were seeking to limit liability for the fledgling international airline industry and that the logical and sensible way to accomplish that was to limit air carrier liability to only the events specified in the Convention and preempt all other liability. On the other hand, the Convention never states that as such; instead, its specific preemption sections seem curiously limited, see Article 24, and it is reasonable to read its language as creating liability that preempts local law only in specific circumstances. Indeed, commentators have pointed out that the Convention explicitly purports to deal with only "certain," not all, the rules of international air travel. See Giemulla, Schmid & Ehlers, Warsaw Convention 14-17 (1997 & Supp. 4 (1994)) (quoting the original title of the Convention in

The text of the Warsaw Convention, 49 Stat. 3000, T.S. No. 876 (1934), can be found at the Note following 49 U.S.C.A.

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