Eastern Airlines, Inc. v. Floyd – Oral Argument – October 29, 1990

Media for Eastern Airlines, Inc. v. Floyd

Audio Transcription for Opinion Announcement – April 17, 1991 in Eastern Airlines, Inc. v. Floyd

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William H. Rehnquist:

We’ll hear next in No. 89-1598, Eastern Airlines v. Rose Marie Floyd.

Mr Murrary you may proceed whenever you’re ready.

John Michael Murray:

Mr. Chief Justice, and may it please the Court:

This case arises from an accident as defined by the Warsaw Convention that occurred aboard Eastern Airlines flight number 855 while in route from Miami to Nassau in the Bahamas.

As flight 855 approached Nassau, the flight crew noticed a low oil pressure indication on one of the Lockheed 1011’s three engines.

They shut down that engine and began a return to Miami.

In route the other two engines of the aircraft quit because of oil starvation.

After a period of unpowered flight, the crew restarted the engine originally shut down and was able to effect a safe landing at the Miami International Airport.

None of the passengers in these cases suffered any physical injury.

Because the crew issued appropriate warnings to the passengers including ditching instructions, safety instructions, and ultimately a notice that ditching is imminent, it’s undisputed that some of these passengers suffered fright.

Eastern received a judgment on the pleadings.

Anthony M. Kennedy:

Not all of them?

[Laughter]

John Michael Murray:

I beg your pardon, Your Honor?

Anthony M. Kennedy:

Not all of the passengers?

John Michael Murray:

Well, there were 162 people on board and there are 25 plaintiffs in this case, so I guess you can draw your own conclusions from… from that.

Eastern, after having received judgment on the pleadings, was… the Eleventh Circuit reversed that and held that emotional injury was in fact compensable under Warsaw, and that’s the primary issue about which we’re here today.

Because of the tenor of the respondents’ brief, I think it’s important that I note one thing specifically here, and that is that the fault or culpability of Eastern Airlines in this matter is not at issue in this case.

And the reason it’s not is because Eastern’s liability is governed by the provisions of the Warsaw Convention.

Specifically article 17 of the Convention provides that the carrier shall be liable.

It’s an absolute liability provision when merged with the Montreal Agreement.

The carrier shall be liable for damages sustained in the event of death, wounding, or bodily injury.

Sandra Day O’Connor:

Mr. Murray, if a… if a passenger in an accident covered by the Warsaw Convention did suffer some physical injury such as a cut on the leg in the course of whatever happened in the air, but also says that there were emotional injuries suffered as well, can the damages cover both the injury to the leg and the emotional trauma?

John Michael Murray:

Our position is, Justice O’Connor, that they can.

We think that there is a requirement that there be a manifest, palpable, physical injury, and the damages suffered in any form after that are recoverable.

Sandra Day O’Connor:

Well, is that because those emotional injuries are incorporated under the term “lesion corporelle” as a matter of law in France?

John Michael Murray:

No, it’s not.

As a matter of fact we feel that the term “lesion corporelle”… I hesitate to use it as a term of law in France, but it is a French term that it uniquely indicative of trauma or lesion to or infringement of the body or an organ of the body.

Sandra Day O’Connor:

Why do you say that the emotional injury in the case I posed is recoverable?

John Michael Murray:

I think–

Sandra Day O’Connor:

Under what language of the Warsaw Convention is it covered?

John Michael Murray:

–Well, Your Honor, the Convention provides… the original French version of the Convention provides that a past… that the carrier is responsible for damage or dommage in the original French.

It’s given very broad connotations.

The briefs discuss at length the definition of “dommage”, “dommage materiel”, “dommage moral”, “dommage corporel”.

But the fact is that in the French version of article 17, the unqualified word damage, “dommage”, is used.

Sandra Day O’Connor:

And that would include the emotional injury?

John Michael Murray:

We believe it includes the emotional injury–

Sandra Day O’Connor:

But you take the position that the term “lesion corporelle” requires as a condition precedent some physical injury to the body?

John Michael Murray:

–Exactly, Your Honor.

And we believe that that “lesion corporelle”, the occurrence of a physical injury, is a condition preceded to recovering whatever damages a passenger suffers.

Anthony M. Kennedy:

And the emotional injury can be compensable even though it results from causes unrelated to the cut?

John Michael Murray:

I believe that is a fair result, Your Honor.

I think the reason… the reason that we feel that it’s important to have the physical manifestation of some sort is, as the briefs have pointed out, is to sort the meritorious from the unmeritorious claims.

I think that was an intent of the Convention.

Antonin Scalia:

You, you rely on the language I presume, which does, does not say damages caused by death, wounding, or other bodily injury, but damage sustained in the event of.

There is no causal connection required in that text, nor in the French which says “en cas de mort”, in the event of death.

Not, not as we… I’m helping… I’m trying to help you here.

John Michael Murray:

Yes, I–

[Laughter]

I understand, Your Honor.

I think that that is a literal, correct interpretation of the French and the English translation of article 17, and I think that that is the… frankly was the intent of the framers of the Convention to, to do exactly what they did there.

As, as you pointed out, Justice Scalia, it… the damage which is unqualified, the word damage, dommage, is unqualified, and it arises only in the event of the occurrence of death… “mort”, wounding… “blessure”, or bodily injury, “lesion corporelle”.

Antonin Scalia:

The problem I have, Mr. Murray, is that I cannot imagine a bodily injury that is not a wounding… I mean, wounding is a very… I’m not sure that’s a good… “a lesion corporelle” that is not a “blessure”.

Can you tell me an example of–

John Michael Murray:

Yes, Your Honor, the, the research that we’ve done into the French meaning of these terms indicates that a “blessure” indicates a trauma of such force that it is in fact a wounding and the example that the text used is if there’s a simply compound fracture of a bone and there is no breaking of the skin, then that is not a “blessure”.

On the other hand, it would deemed a “lesion corporelle”, a infringement of the body or its organs.

So there are differences in the French meaning between the two terms, and that’s the reason that they were I believe used, the three in the alternative.

Antonin Scalia:

–Very, very elegant, but I’m not… I’m not sure it’s right.

[Laughter]

Did… neither brief, although correct me if I’m wrong, makes any point out of the phrase “de tout autre”, of any other… does that just not help either party?

John Michael Murray:

Justice Kennedy–

Anthony M. Kennedy:

Because it, it seems to me that “any other” might relate “lesion corporelle” to wounding or death.

John Michael Murray:

–Justice Kennedy, it appears that… and our analysis is that “mort” and “blessure” are not totally inclusive, as I just explained, of any bodily injury, any trauma, any impact, any infringement on the body, and the terms “de tout autre”, “lesion corporelle” were included to expand.

Anthony M. Kennedy:

I’m just referring to the words “de tout autre”.

Would your case be just as strong or just as weak without those words?

John Michael Murray:

I believe that, that other words could be used to include–

Anthony M. Kennedy:

Well, it could have eliminated those.

It just could have said “au lesion corporelle”.

John Michael Murray:

–Yes, I think they could have.

Anthony M. Kennedy:

So that has no effect on your case?

John Michael Murray:

No, not… not to my understanding.

Antonin Scalia:

Well, it may harm your case a little bit, because if you… as you’ve just described the difference between “blessure” and “lesion corporelle”, “lesion corporelle” is not another… I mean a “blessure” is one kind of “lesion corporelle”, I assume.

John Michael Murray:

That’s correct.

All right–

Antonin Scalia:

You’ve told me… you’ve told me that they’re two different things.

John Michael Murray:

–I’m not saying that they’re two different things.

I’m saying that a “blessure” would be included within the broad term of “lesion corporelle”, but not necessarily vice versa.

You can have a bodily injury that is not necessary a wounding.

William H. Rehnquist:

I see.

So the addition of “tout autre lesion corporelle” broadens the liability of the carrier over what it would be with just

“cas de mort, de blessure? “

John Michael Murray:

Yes, yes, Mr. Chief Justice, that’s the way we read and understand the phrase.

The French and the English translation of article 17 we believe as we have just now discussed are quite clear and that the damage recoverable is recoverable in the event of the death, wounding, or bodily injury.

And we feel that the wording of article 17 is quite clear, that it’s not necessary to go any further than that.

But looking at the drafters’ intent in the 1929 Convention, it is clear that there was vast silence on the issue of what article 17 was meant to include.

The subsequent drafting history, as review by the Eleventh Circuit, is somewhat more helpful in determining what the drafters of the original Convention meant.

In 1951 in Madrid, the… at a subsequent drafting convention, the French delegate, as a matter of fact, introduced an amendment which would have changed and broadened the term “lesion corporelle” to have included mental injury.

That was rejected in the 1951 Madrid Convention.

Similarly, in 1955 at The Hague, the Greek delegate asked for a change to broaden the terms of article 17 and that was sounded defeated.

Sandra Day O’Connor:

Now at the so-called Guatemala Accords, which have not yet been approved I gather in this country–

John Michael Murray:

Correct.

Sandra Day O’Connor:

–would the meaning change under the Convention?

John Michael Murray:

Justice O’Connor, we don’t feel that the… number one, the original French translation of article 17, the original French version rather of article 17 remains unchanged from the 1929 Convention to the present time.

There have been changes that deal with notification that incorporate the term “personal injury”.

We don’t feel that they have any significance at all with respect to the Guatemala City protocol and, as was pointed out in Saks, the Guatemala City protocol, not having been ratified by the Senate, does not thereby govern this case.

The line of demarcation that we’re asking to… the Court to impose in the interpretation of the Convention is we believe one that is extremely fair.

The respondents have raised in their brief the concern that people would in fact be injured, be frightened, be entitled to recover damages in these cases and not be able to effect that recovery.

But the use of the bodily injury requirement we feel is consistent with policies that are in place in this country today.

These type… this line of demarcation would allow claims that are real, that are significant to be… to have a recovery effected and yet be able to sort out the unreal, the more trivial claims, or the more–

William H. Rehnquist:

But you certainly would get some presumably legitimate claims of emotional distress, not feigned, that would be thrown out under this line of reasoning.

John Michael Murray:

–Unquestionably, Mr. Chief Justice, there will be.

But I think that there needs to be a determination made as to where a fair and equitable demarcation line is, and I believe that the physical, palpable, objective-type manifestation of any injury meets that test.

John Paul Stevens:

Mr. Murray, they, they argue in response that the requirement of an accident imposes some kind of a limit on the danger that every time you get in a rainstorm, you have a lot of claims.

Would you comment on the force of that argument?

John Michael Murray:

Justice Stevens, I think that that is a concern that Eastern has and that other carriers have in this… in this issue.

It’s very clear that, number one, under the Warsaw scheme, if there is an accident, the carrier is absolutely liable because the Montreal Agreement has waived any ability of the carrier to raise the due care defense.

Number two, if a passenger having experienced an accident during travel on the aircraft or during in any of the processes of embarkation or disembarkation, presents a compensable injury, he’s automatically entitled to recover.

Accident has been held to be a very broad, broadly defined term.

It’s very inclusive.

It includes anything that is uninspected or unintended from the standpoint of the carrier.

A turbulence encounter that is unexpected, for example, is an accident.

John Paul Stevens:

I thought so and although the respondents’ brief in this case suggests that a turbulence encounter is not an accident as I recall it.

John Michael Murray:

Justice Scalia, there are a number of cases that we have dealt with that have… we’ve treated as accidents and there certainly are cases that hold that a turbulence encounter, an unexpected turbulence encounter, is an accident, as would be, for example, a four-engine aircraft that has a problem with one engine and a precautionary shutdown is made.

And if that is announced to the passenger, that is unexpected from the standpoint of the carrier.

That is an accident under Warsaw and it would be compensable.

And under that scenario, any passenger could then present an absolute liability claim to the carrier saying, by the way, when you shut the engine down and you told us about it, it sure scared me.

Anthony M. Kennedy:

Of course the absolute liability came into effect with the Montreal Treaty–

John Michael Murray:

That’s–

Anthony M. Kennedy:

–and it seems to me that that’s irrelevant.

We’re interpreting the Warsaw Convention as it was intended and drafted when there was I take it some showing of fault.

John Michael Murray:

–That’s… well, that’s correct, Your Honor.

The Montreal Agreement is in fact the agreement that is in place now.

But the strict liability provisions were intended under the original 1929 Convention and what was added in addition to the strict liability provisions was a provision where the carrier could show that it should be exonerated of liability if it used all due care and that simply has been waived with respect to the Montreal Agreement.

And under the scenario that the carriers operate now, any presentation of a claim after a compensable accident gives rise to absolute liability.

Anthony M. Kennedy:

Well, but the point still is that as of the time of the Warsaw Convention you were subject to strict liability.

John Michael Murray:

That’s correct.

I… let me retreat from that and say that the carrier was liable strictly to a passenger, but it was able to avail itself of the due care defense.

I think it was stronger… it was intended to be stronger by the drafters of the Convention than recourse to the national law at that time.

Byron R. White:

Has this issue been litigated in the French courts?

John Michael Murray:

Not to my knowledge, Your Honor.

And when you say this issue, you mean whether mental anguish unaccompanied by physical–

Byron R. White:

Yes.

John Michael Murray:

–manifestation is compensable under the Convention?

William H. Rehnquist:

Right.

John Michael Murray:

We know of no cases that–

Byron R. White:

Well, is there, is there some French view about this issue?

John Michael Murray:

–The… well, the French law in our judgment does contemplate recovery in negligence cases for pure mental injury and I think that that is well covered in the French wording of article 17 where it talks about 17 and they… we would feel that they would contemplate recovery for whatever–

Byron R. White:

Well, is there a French… is there a French view about the meaning of the Warsaw Convention?

John Michael Murray:

–Not in this context that I’m aware of, Your Honor.

William H. Rehnquist:

It struck me, Mr. Murray, that both the… your brief and the respondents’ brief were quite lacking in any French interpretations of what this term would have meant at the time the Warsaw Convention was adopted.

I assume maybe that that was because there just weren’t any.

John Michael Murray:

Well, and when you say that term, are you–

William H. Rehnquist:

“Lesion corporelle”.

John Michael Murray:

–“Lesion corporelle”.

Your Honor, I think the reason that… we recognized in our brief that the Napoleonic code at that time did in fact provide that when one does wrong to another, he must compensate that other for the wrong done.

It’s extremely broad, and it’s not narrow at all.

But the term “lesion corporelle” in our judgment, in our research is not specifically a legal term.

There are terms that are utilized in the French law, but they modify the word damage, “dommage”.

There is “dommage corporel”, for example.

There is “dommage materiel”.

John Michael Murray:

There is “dommage moral”.

William H. Rehnquist:

You can read through cases construing the code Napoleon then and find no use of the term “lesion corporelle”?

John Michael Murray:

I’m not saying we didn’t find any use of the term “lesion corporelle”, but I think that the readings that we did and the things that we cited in our brief and with which there’s very… generally no disagreement is the fact that the term “lesion corporelle” is translated appropriately to be bodily injury.

Antonin Scalia:

But lesion does not mean lesion.

It means harm.

It means prejudice.

It means a lot of things like that in French, doesn’t it?

John Michael Murray:

Yes, Your Honor.

Antonin Scalia:

I mean we shouldn’t be misled to think that it means lesion.

John Michael Murray:

That, that there–

Antonin Scalia:

Your position is that when it’s combined with “corporelle”, it means what you say.

John Michael Murray:

–Exactly.

“Lesion”, for example, can be the infringement of a right.

It not… it need not be as you indicated a lesion or associated with a bodily function, but used together with the term “corporelle”, that’s the clear meaning of the term.

And the issue that we’ve also asked the Court to look at, the second issue, is the one dealing with exclusivity.

We’ve taken the position throughout the pendency of this litigation that the Warsaw Convention was intended to be the exclusive vehicle for recovery.

William H. Rehnquist:

Do you think that question is fairly presented by your question presented for certiorari, Mr. Murray?

John Michael Murray:

Yes, Your Honor, we feel that even though it wasn’t in the first page of the brief as a question presented, it was certainly raised.

It was raised in the trial court.

It was raised in the Eleventh Circuit, and it was raised in the petition for certiorari and fully briefed therein.

William H. Rehnquist:

Well, let, let me read you… your question presented which of course it at the first page of your brief, whether in view of the presumed liability under Warsaw Convention for death, wounding, or any other bodily injury, an air carrier is liable for fright, psychic injury, or emotional distress, absent objective bodily injury or absent any physical manifestation of injury.

That, as I understand it, is the question presented in your petition.

And do you think that the question you’re now talking about is fairly subsumed under that question?

John Michael Murray:

Under that question perhaps not, Your Honor, but under rule 14 of the rules of the Court we feel that the question as is discussed later in the brief and is argued and is fully presented, does adequately preserve the question of exclusivity before the Court.

Antonin Scalia:

But when we grant cert., I assume we grant cert. on the question that’s contained on the first page.

I… you know, I don’t know what to look to as to… you know anything… I’m not going read every part of every brief to find out what we granted cert. on.

I want to be able to turn to the first page and say this is the issue they want us to address, and that wasn’t there at all.

John Michael Murray:

It was not, Your Honor.

I must candidly admit that it was not there.

But I must point to the last section of the brief–

Antonin Scalia:

It wasn’t [inaudible] a separate section addressing it, but it was sort of by the way, you know, while you’re about it, you might want to address this other question.

John Michael Murray:

–Yes.

Antonin Scalia:

Is how you sort of put it.

John Michael Murray:

That’s correct, Your Honor.

John Paul Stevens:

And beyond that, hasn’t the Florida court held there’s not State law cause of action here anyway?

John Michael Murray:

They have held that there is no State law cause of action for the intentional infliction of emotional distress as pled in the pleadings of the case that it considered, that’s the–

John Paul Stevens:

So what do want us to preempt?

John Michael Murray:

–Well, Your Honor, there are two cases under the Floyd Eleventh Circuit decision wherein the Court allows an amendment to the complaint, that is, the Khoury case and the Dix case, and we feel that the controversy is in fact alive.

That these two plaintiffs, Khoury and Dix, now have an opportunity to go back to the trial court to amend their pleadings and they can fairly amend the State… to add a State cause of action.

So we think that within the ambit of this case, that the issue is alive.

And they… we think that article 24 fairly speaks for itself, that it is intended to be… the Convention is intended to be the sole vehicle for recovery.

The minutes absolutely support that contention.

I would point to the comments of three delegates at the 1929 Convention, specifically Mr. Ambrosini from Italy, who said, we wish that the Convention be applied in all cases.

In any case recourse to national law must be ruled out.

Mr. Ripert from France said> [“], We are absolutely opposed to a formula that would lead the application of national law.

And Sir Alfred Dennis of Great Britain said, in discussing article 24,

“It is a very important stipulation which touches the very substance of the Convention because this excludes recourse to common law. “

We feel that the directors of the Convention were uniform in their intent that any recovery by an injured passenger in international air transportation be governed exclusively by the Warsaw Convention.

So in sum, we ask the Court to find, number 1, that a mental injury unaccompanied by any physical manifestation, a physical injury, should be uncompensable, and number 2, that the Warsaw Convention should be the exclusive vehicle for recovery in any claims in international air transportation.

William H. Rehnquist:

Thank you, Mr. Murray.

We’ll hear now from Mr. Eaton.

Joel D. Eaton:

Mr. Chief Justice, and may it please the Court:

The Chief Justice observed that the briefs were lacking in a discussion of the French civil law background, and I thought I was doing the Court a favor.

What I did was adopt section 3 of the court of appeals’ opinion as my primary argument on that point.

William H. Rehnquist:

I felt that, I felt that was lacking, too, in any discussion of contemporary French law at the time of the Warsaw Convention was adopted.

Joel D. Eaton:

The Eleventh Circuit’s analysis is drawn almost entirely, maybe 75 percent, from a book written by Professor or Dr. Rene Mankiewicz of McGill University, who from my reading on this subject is considered the single leading expert on the question of the meaning of the language in the Warsaw Convention.

His conclusion and the Eleventh Circuit’s conclusion was that the phrase “lesion corporelle” is not appropriately translated into the terms, the English phrase “bodily injury”.

And the bottom line that both Dr. Mankiewicz proposed and the court of appeals held was that the phrase should more appropriately been translated into the phrase “personal injury” in the English language.

William H. Rehnquist:

Did Dr. Mankiewicz in his treatise discuss French personal injury law–

Joel D. Eaton:

Yes, Your Honor.

William H. Rehnquist:

–as of the vintage of the Warsaw Convention?

Yes, he did, Your Honor.

Dr…. many of Dr. Mankiewicz’s reasons for reaching this conclusion are incorporated into section 3 of the court of appeals’ opinion.

Basically, he says there is no concept in French civil law which relates to the words 1929 saying Dr. Mankiewicz, were “dommage personal”, “dommage patrimoniel”, non-economic damages, economic damages.

Then why would the drafters use a phrase like that?

If it didn’t mean anything in the French legal world?

Joel D. Eaton:

Dr. Mankiewicz’s opinion was that the phrase meant something broader than either “dommage personal” or “dommage patrimoniel”.

It meant the concept that the English law has which is personal injury, a broad, a broad… any type of injury suffered by a passenger in an, in an international air carrier accident.

William H. Rehnquist:

Well, did, did he deduce that I take it not from French legal authorities which you say didn’t even use the term, but simply from a translation from the French?

Joel D. Eaton:

No, he deduced it from a number of facts, Your Honor, one of which was that the French civil law simply did not recognize the distinction that Mr. Murray has asked the Court to read into or impose upon article 17.

There is no concept either in 1929 or today in the French civil law.

Dr. Mankiewicz cites five or six French court decisions in his 1981 treatise.

There is no concept in the French civil law that you have to have a physical injury or a physical impact before you’re entitled to recover damages for your mental distress.

That, Dr. Mankiewicz–

Byron R. White:

Then there are cases that say you may recover for mental… for some kind of a mental upset.

Joel D. Eaton:

–There are cases in the French civil law and in the Napoleonic Code, as Mr. Murray has conceded.

Antonin Scalia:

But there were not any… I mean, this is a treaty we’re talking.

Maybe that’s why they had to invent a new term like “lesion corporelle” which does not exist.

Although there were such causes of action in French law, there were none in English law, as I understand it.

And I doubt whether there were any in the United States… I remember when I was in law school, it was considered avant-garde in those States that allowed recovery for mental distress when there had been no physical harm.

So you’re asking us to believe that the English, who not only had never heard of it then, don’t even know of it now, and the United States representatives, who also didn’t know of it at the time, signed on to a treaty that provides… with respect to a new technology… this kind of extraordinary relief that didn’t even exist for, you know, hitting somebody with a hammer or scaring somebody with a hammer domestically.

Joel D. Eaton:

Most–

Antonin Scalia:

That’s must not plausible, is it?

Joel D. Eaton:

–Most respectfully, Justice Scalia, the English common law recognized and has recognized for centuries various tortious causes of action for the recovery solely of mental injuries, the law of defamation for one.

There are no physical injuries involved in a liable or a slander.

Antonin Scalia:

Unintentional?

Joel D. Eaton:

A negligent assault, negligent defamation–

Antonin Scalia:

Negligent assault?

What’s a negligent assault?

I–

Joel D. Eaton:

–You have… negligence–

Antonin Scalia:

–It’s an intentional tort.

The only torts I’m aware of where you could recover for emotional injury alone were intentional.

We’re talking here of negligence or indeed even absolute liability, not even negligence, less than negligence.

Joel D. Eaton:

–The impact rule is in my reading of it designed for a very narrow purpose.

That is where the interest is in the protection of physical security alone.

Physical security is threatened, but there has been no injury.

Then typically, solely as a matter of judicial philosophy and to draw an arbitrary line between the probably significant and the probably trivial, the impact rule is imposed to prevent claims from negligent infliction of mental distress, been relaxed all over this country in numerous contexts in cases of aggravated conduct where common carriers are involved, in cases where the most likely injury, the most probable injury of the conduct which is recognized as tortious is mental distress where there’s no physical injury threatened by the tort.

For example, the negligent mishandling of a dead body has long been actionable in English common law.

The relatives are allowed to recover their mental distress… no physical injury–

Thurgood Marshall:

Was the mental injury, the fact that they were about to crash?

What was the mental injury?

Joel D. Eaton:

–The mental injury, Your Honor, is the terror–

Thurgood Marshall:

You might, you might say you won’t talk about it.

Joel D. Eaton:

–the terror at the thought that they were all going to die, which lasted for several minutes during the descent.

Thurgood Marshall:

Now, a plane is going from one coast to the other coast and it falls down 10,000 feet, will those people have injury?

Joel D. Eaton:

No, Your Honor, there would be no accident in that case.

Thurgood Marshall:

Huh?

Joel D. Eaton:

And air planes don’t do that.

They don’t fall 10,000 feet.

Thurgood Marshall:

I know it was no accident, but it fell 10 feet and it felt like it was going to be an accident.

Joel D. Eaton:

No, Your Honor, turbulence is an expected event in aviation.

Turbulence is up there because the Gulf Stream… not the Gulf Stream… the jet stream causes turbulence, the build up of cumulus clouds into alta… into–

Thurgood Marshall:

Thunder and lightning… does that do it?

Joel D. Eaton:

–Normal and expected happenings in aviation.

Thurgood Marshall:

What does it?

What is peculiar about this one?

Joel D. Eaton:

What is peculiar about this case?

Thurgood Marshall:

Yes, sir.

Joel D. Eaton:

This case did not involve a signal engine failure of an air–

Antonin Scalia:

Engines don’t fail?

That’s… that’s not to be expected either like–

Joel D. Eaton:

–Of course it is.

That’s why you put three or four engines on the airplane.

[Laughter]

In this case, all of the engines on the airplane… well, they’re not expected to fail, no.

They’re suppose to run to their overhaul time and then be overhauled, put back on.

No, they’re not expected to fail from sloppy maintenance.

But the difference between this case and the single engine failure that Mr. Murray talked about is that all of the engines quit.

Thurgood Marshall:

–I’ve been on at least a half a dozen planes where an engine fell out.

Joel D. Eaton:

Where the engine failed?

Thurgood Marshall:

You mean I lost some money?

[Laughter]

Joel D. Eaton:

I don’t believe so, Your Honor.

[Laughter]

I don’t believe, no.

I don’t believe a jury would compensate you in that case, because only one of the engines failed, which is the reason why there are lots of engines on an airplane.

Thurgood Marshall:

xxx on a four motor and three of them went out.

Joel D. Eaton:

Well, all the engines failed, every engine on this airplane failed.

Thurgood Marshall:

Oh, well.

Oh, that’s what kept me from getting any money?

I see.

[Laughter]

Joel D. Eaton:

Yes, Your Honor.

Thurgood Marshall:

I’m just worried about the money I’ve lost.

Joel D. Eaton:

It’s not just the terror suffered by the passengers during this 7 or 8-minute period when they all thought they were going to die.

Anthony M. Kennedy:

Suppose there’s heavy turbulence and a passenger falls and has a fracture.

Recoverable?

Joel D. Eaton:

According to Mr. Murray it is.

Anthony M. Kennedy:

What is your position?

Joel D. Eaton:

I don’t believe it makes any sense to read that complex distinction into these two words, “lesion corporelle”, and that’s basically what I’ve argued.

Anthony M. Kennedy:

I’m still not sure what your answer it?

Joel D. Eaton:

Mr. Murray says the phrase “lesion corporelle” or he has now backed it up several–

Anthony M. Kennedy:

I want to know your position.

Joel D. Eaton:

–Okay, my position is–

Anthony M. Kennedy:

There’s turbulence and it causes a fracture.

Recoverable under the Warsaw Convention?

Joel D. Eaton:

–I’m sorry.

I misheard the question.

No.

The answer is no.

It may very well be recoverable under some other local law that’s not inconsistent with the Warsaw Convention if you can prove fault in that the pilot flew into an area of known turbulence, for example, against the advice of the FAA.

William H. Rehnquist:

Simple turbulence causing an… causing injury is not recoverable because it’s not an accident?

Joel D. Eaton:

I don’t believe it’s an accident, Your Honor.

It’s not… it’s a normal expected event in flight.

You cannot avoid turbulence in flight.

You can’t see it.

Antonin Scalia:

Well, you, gee, you don’t ordinarily encountered the kind of turbulence that causes somebody to get hurt.

That’s very rare.

Just as all of the engines on a plane going out is very rare, but it happens.

Joel D. Eaton:

It’s very rare, because the commercial airlines are, are very careful about skirting those areas in which they can project and product turbulence.

Antonin Scalia:

Right.

I think one’s an accident, just as the other one is.

Joel D. Eaton:

Turbulence is not rare.

Turbulence is up there right now.

Antonin Scalia:

I’m talking about bone-breaking turbulence.

I’m not just, you know, a few… a little bump.

Joel D. Eaton:

Well, it, you know, that’s not something that–

Antonin Scalia:

Seems like an accident to me.

Joel D. Eaton:

–It may be an accident.

Joel D. Eaton:

It may be an accident.

I took the position that minor incidence of encounters with turbulence were not, because you needed something that was serious, sudden, unexpected–

Antonin Scalia:

Yeah, but what about unexpected turbulence?

Joel D. Eaton:

–Unexpected–

John Paul Stevens:

That’s an accident, isn’t it?

Unexpected turbulence.

Joel D. Eaton:

–Unexpected turbulence?

John Paul Stevens:

You don’t have your seatbelt on, you’re thrown against the ceiling, and you’re killed.

You have no cause of action?

Joel D. Eaton:

I believe you would because of the serious nature of the incident.

John Paul Stevens:

But it has to be an accident for you to have a recovery, doesn’t it?

I thought it was everybody agreed there was unexpected turbulence that caused physical harm that that was (a) an accident, (b) it was covered by the treaty.

Joel D. Eaton:

I suppose my aviation background has caused me to take a position that probably I shouldn’t have taken.

I’ve been flying for 25 years.

Every time I get in an airplane I run into turbulence.

It’s not a serious thing to me.

John Paul Stevens:

You fly higher than I do.

[Laughter]

Joel D. Eaton:

Commercial airlines spend a lot of time avoiding areas in which they can predict turbulence, and generally when a commercial airliner gets in a situation where the turbulence is so severe and it hasn’t alerted people to the need to wear the seatbelt and somebody gets physically hurt, that’s probably an accident within the lay or even jurisprudential construction of the statute.

But there’s no harm done here, because what we’ve got is essentially like of workers’ compensation system.

There is a cap on damages here at $75,000, and there’s a tradeoff.

Hey, we’ll give you strict liability for anytime you get hurt in an accident in an airplane, you give us a cap on the damages.

So I don’t have any problem with suggesting that turbulence can be covered here.

William H. Rehnquist:

Work… the courts in workmen’s compensation cases, at least in the days when I practiced law, have been very hard put to define an accident, which most State statutes for workmen’s compensation use, injury arising out of accident.

Very hard put to define the term accident as having any significant limitation.

Joel D. Eaton:

Well, the court took a stab at that in the Air France v. Saks case and did define it to exclude things that happened internally to the passenger.

But the definition of accident that the court came up with in Air France v. Saks is very broad.

But let me get back to the French legal meaning, because that’s the technical question before the Court.

The conclusion of Dr. Mankiewicz and a number of other scholars which are not cited in my brief but are collected in the Eleventh Circuit’s opinion and the Eleventh Circuit was that the phrase lesion corporelle simply didn’t translate well into bodily injury.

There are a number of reasons why Dr. Mankiewicz reached that conclusion.

Joel D. Eaton:

One was that the French civil law did not recognize the distinction which the common law impact rule imposes on court actions, and therefore, who would have expected in 1929 that the drafters of the Treaty could have come up with something like that.

William H. Rehnquist:

Did the theory of Dr. Mankiewicz being that the drafters had intended to come up with something that was recognized in French law?

Joel D. Eaton:

No, his conclusion was that by using a phrase “lesion corporelle”, they meant something broader than the narrower concepts recognized, “dommage personal”, “dommage patrimoniel”, “materiel”, or “moral”, that they wanted something broader and what they were after was–

John Paul Stevens:

Broader than any of those?

Joel D. Eaton:

–No.

Broad as the English concept of personal injury, which incidentally is the word that all the subsequent revisions of the Warsaw Convention have used, which is down there at the bottom of my list of reasons for the Eleventh Circuit’s construction.

Dr. Mankiewicz was also impressed by the fact that the German delegate to the Convention went back and translated the official German translation of the Warsaw Convention, rendered the phrase “lesion corporelle” as

“any infringement on the health of a passenger. “

and the German translation is now used in Germany, Austria, and Switzerland… much broader than the English bodily injury.

He also looked to a thesis written by a student, George Ripert, who was the French… leading French delegate and the drafter of this Convention.

And the Blanc-Dannery thesis, written under the supervision of Dean Ripert, states that article 17 is broad enough to cover nervous troubles arising out of an accident.

John Paul Stevens:

Let me pause there if I may.

You say any German translates that any infringement on the health of the person.

Would just the period of intense fright for 5 minutes with no subsequent consequences qualify under that?

Joel D. Eaton:

Yes, Your Honor.

The damages may not be great, and we’re not here saying each of these passengers is entitled to a million dollars.

John Paul Stevens:

But you think that being frightened for a minute with no after effects would be an infringement on your health within the meaning–

Joel D. Eaton:

Yes, but the more important damages, and I didn’t get to answer that question about what the damages the passenger have sustained in this case.

There are two passengers who suffered physical sequelae which give you a recovery even under Mr. Murray’s theory.

There are several of these passengers who will testify that this event was so terrifying to them that they have never been able to fly on an airplane again.

That’s an ongoing, permanent, perhaps, mental injury.

There are people who have nightmares, fear of flying, the whole panoply of damages that you might expect in a case like this.

John Paul Stevens:

–May I ask this… I don’t know maybe I should ask your opponent this.

Supposing a person… a passenger was so frightened that he or she had a heart attack… no physical… would that be… would they agree that would be recoverable?

Joel D. Eaton:

Yes, Your Honor, that is a physical sequelae of a mental distress–

John Paul Stevens:

I see.

Okay.

Joel D. Eaton:

–which they say the common law impact rule does not exclude.

In this case my understanding is that there was a pregnant woman who gave birth prematurely as a result of the mental stress.

The baby was blind and retarded as a result of the premature delivery.

Joel D. Eaton:

Eastern did not contest that claim.

That claim was litigated and my understanding is that, that they have collected their $75,000 in that case.

So there is a panoply of damages which can occur to people put in this situation.

It may be that some of these claims will be awarded zero damages.

A single-engine failure, minor turbulence, whatever.

A jury is not going to compensate you for it.

But that’s not a reason to exclude legitimate cases of people who flew for a living and can no longer fly as a result of the terror that they have suffered as a result of this inexcusable incident.

It was just poor, sloppy maintenance, which the Eleventh Circuit has held the allegations of our complaint are sufficient to support a finding of willful and wanton misconduct.

Now let me turn to the subsequent conduct of the contracting parties, because this is a very important aspect–

Antonin Scalia:

Mr. Eaton, before you leave the… you know, this textual stuff to an extent, Dr. Mankiewicz, did he say anything more categoric, because I didn’t go back and consult his treatise?

What is quoted in the opinion below is his statement that while bodily injury is undoubtedly a grammatically correct translation of “lesion corporelle”, it may rightly be argued that… it may… it may rightly be argued that the meaning of that expression in French law and its equivalence in other civil laws are more correctly rendered by the expression personal injury.

That’s sort of, you know–

Joel D. Eaton:

–Well–

Antonin Scalia:

–Is he just saying, you know, it’s a nice question or does he really come down four-square for the fact that that’s what it means?

Joel D. Eaton:

–He’s not the Supreme Court of the United States, so he did not say this is what the language means.

Antonin Scalia:

He didn’t.

Joel D. Eaton:

It was a scholarly opinion.

It was his opinion.

Antonin Scalia:

The usual scholarly opinion, waffling and–

Joel D. Eaton:

Yes, waffling to some extent.

[Laughter]

Antonin Scalia:

–Yeah.

Joel D. Eaton:

There is no question but that the question is troublesome.

The phrase is ambiguous and the drafting history is not very helpful.

Mr. Murray says it’s clear and unambiguous.

I think everybody here will disagree with that.

But, no, what he says is that it is ambiguous, it is not clear, but I conclude, my opinion is based on all these things that the phrase “lesion corporelle” is more appropriately translated into the English concept of personal injury.

Antonin Scalia:

Is more appropriately… he says that?

Joel D. Eaton:

Yes, then–

Antonin Scalia:

Not just maybe argued that it–

Joel D. Eaton:

–No, he said what you said.

Antonin Scalia:

–He said what I said.

Okay.

Joel D. Eaton:

I’m paraphrasing it.

But let’s turn to the subsequent conduct.

Mr. Murray talks about a 1951 meeting in Madrid at which absolutely nothing happened, nothing came out of it.

It was an interim meeting at which some people proposed probably to cure the ambiguity that mental injury be made more specific in article 17, but nothing happened.

What did happen in 1955 at The Hague is that article 31(c) was redrafted and proposed as an amendment to the Warsaw Convention.

And it translated the phrase,

“mort, blessure, ou de toute autre lesion corporelle. “

into death or personal injury.

And that sits today as article 31(c) of the amendments adopted at The Hague.

Now, in the–

William H. Rehnquist:

What, what does 31(c) deal with?

Joel D. Eaton:

–31(c) deals with the legend that has to be put on the passenger ticket, and it says you’ve got to tell the passenger about the limitations on his right of action to recover for death or personal injury.

Now in 1966 in Montreal, after the United States Government denounced this treaty because it had a $8,300 cap on the recoverability of damages, the airlines got together and they decided to raise their limits, accept strict liability, which was not initially written into the Warsaw Convention.

It was a negligence action although the burden of proof was shifted to the carrier to prove non-negligence rather than the traditional.

And in exchange for all of those, the airlines also agreed to put on the face of their ticket an advice to the passenger which advised them of their limitations of liability.

In all the discussions and the written documents produced at the Montreal Agreement, the phrase bodily injury and personal injury are used interchangeably without distinguishing between the two.

They appear almost an equal number of times in the Montreal Agreement.

The two phrases appear and are used interchangeably in the CAB order which adopted or approved the Montreal Agreement.

And the passenger ticket which is now issued to all passengers getting on a carrier in international air transportation advises them of the limitations of the carrier’s liability in case of death or personal injury.

William H. Rehnquist:

And the Montreal Convention was in English?

Joel D. Eaton:

Yes, Your Honor.

Well, what–

Joel D. Eaton:

I hesitated only because I’m not absolutely certain, but I’m pretty sure it is.

–[inaudible].

Joel D. Eaton:

Say that again, sir.

Thurgood Marshall:

Opinion of the Second Circuit requires that that be posted, that the limitations must be put on the counter of the airline.

Joel D. Eaton:

On the ticket itself.

Joel D. Eaton:

Yes, Your Honor.

Thurgood Marshall:

That wasn’t voluntary.

That was required.

Joel D. Eaton:

Well, the airlines agreed to do that in the Montreal Agreement, and now the Agreement itself requires that that–

Thurgood Marshall:

It needed a court case to do it.

Joel D. Eaton:

–In any event it is now required for whatever reason–

Thurgood Marshall:

If you ever read the opinion, just read who wrote it.

Joel D. Eaton:

–Okay.

I had to–

David H. Souter:

What actual advice do they give them?

Joel D. Eaton:

–The limitation on the passenger tickets is described as a limitation on the damages, and I can’t quote it, because I don’t have it handy, for any cause of action you may have for death or personal injury.

David H. Souter:

Well, does it say that you get nothing if the personal injury is unaccompanied by a physical manifestation?

Joel D. Eaton:

No.

David H. Souter:

It just says… what does it say?

There’s a $75,000 limit?

Joel D. Eaton:

It says you have a $75,000 limit on any action you have for death or personal injury arising out of international air… an accident in international air transportation.

I wish I could quote it.

I don’t have it.

The tickets for some of these passengers are in the record before the Court.

David H. Souter:

Of course, that’s still literally consistent with the position that Eastern is taking.

Joel D. Eaton:

No, because death or personal… personal injury is a much broader concept than bodily injury.

David H. Souter:

Yeah, but to say there’s a $75,000 limit on all personal injury is not inconsistent with the position that there is a zero limit on personal injury unaccompanied by a physical manifestation.

Joel D. Eaton:

That’s not inconsistent, but the point I’m trying to make is that the English translation of “lesion corporelle” into bodily injury is not necessarily the correct translation of the phrase, and the subsequent conduct of the parties recognizes that it is more appropriately translated into the broader concept of personal–

Antonin Scalia:

But wouldn’t it have been misleading to put on the tickets that there’s a $75,000 limit for, for bodily injury, leaving… leaving the implication that if you had mental distress besides the bodily injury, you could recover something more.

I mean if, you know, if I were writing it as a limitation provision, I might well want to say for personal injury to avoid implying to the passenger that the $75,000 limit applied only to bodily injury but you could get more money for mental distress, whereas in fact what they’re saying is you can’t get anything for mental distress unless it accompanies bodily injury.

Wouldn’t that have been a good reason for translating it that way?

Joel D. Eaton:

–The whole problem I have with Eastern’s position is that this very complex distinction represented by the common law’s impact rule can’t be spelled out of the language in article 17.

It takes a whole paragraph to explain the distinction between you get mental damages if you have a physical injury but you don’t get mental damages if you don’t have a physical impact unless you have some physical sequelae arising out… you can’t read all of that into there and, therefore, to draft the ticket provision the way Eastern wants this article 17 read, you’re going to need another page.

The point is–

Mr.–

Joel D. Eaton:

–that although the State Department translated “lesion corporelle” into bodily injury, it has routinely been translated into the broader phrase, personal injury, by the subsequent conduct of the parties.

Sandra Day O’Connor:

–Mr. Eaton, I thought in 1955 that the delegates did not change the language of article 17.

Joel D. Eaton:

They did not in 1955.

Sandra Day O’Connor:

And I thought also that in 1955, there actually was an amendment proposed to article 17 to make it say any other mental or bodily injury and that was rejected by the delegates.

Joel D. Eaton:

My understanding of those two early discussions of the problem was that the people… the delegates thought that there was some ambiguity here and they wanted to make sure that they removed the ambiguity.

But there was not–

Sandra Day O’Connor:

Well, the decision was not to amend it to include mental or–

Joel D. Eaton:

–Perhaps the history–

Sandra Day O’Connor:

–bodily injury in 1955.

Joel D. Eaton:

–The history is not particularly specific about the reason why the amendments were voted down.

It may very well–

Sandra Day O’Connor:

It’s because the Greek delegation didn’t want to make that change.

Joel D. Eaton:

–Well, there is also some discussion in the materials that I read to the effect that it was not necessary to specify it any further because it was included within the concept of “lesion corporelle”.

Let’s go to 1971 and 1975, because in the Guatemala City protocol and the in the Montreal protocols 3 and 4, neither of which had been adopted by the United States.

Article 17 of the French was not changed, but for the first time the Warsaw signatories, delegates, drafted an authentic English version of article 17.

This is not the State Department’s translation in 1934 now, but an authentic English version of article 17 which translates the phrase “lesion corporelle”, which remains in the French version as personal injury… death or personal injury.

Sandra Day O’Connor:

And we haven’t agreed to that?

Joel D. Eaton:

The Senate has never adopted–

Sandra Day O’Connor:

Right.

Joel D. Eaton:

–any of these subsequent amendments because–

Sandra Day O’Connor:

But you think it’s binding on us somehow?

Joel D. Eaton:

–It’s absolutely not binding, Your Honor, but it is evidence of the subsequent construction of the intent of the framers in 1929 that the delegates keep coming to these conventions and assume that Dr. Mankiewicz opines that it means and that is personal injury and the Court in the Air France v. Saks case is looking to the death… for finding the definition of accident, looked at the Guatemala City protocol and the Montreal protocols 3 and 4 for that kind of evidence.

Let me also suggest to the Court that the common laws impact rule at this point in our history leads to some rather strange and silly torturing of the facts in order to get cases into court.

I sent up some supplemental material on the United 811 flight, the 747 which lost the cargo door and sucked 9 people out.

The plaintiffs in that case in order to get around Mr. Murray’s impact rule and his construction of article 17, alleged and I imagine they can prove that they all inhaled some insulation fibers that were circulating about the cabin, that they got struck with small pieces of debris, and that they were scared to death.

Now, if the impact rule applies, those plaintiffs get a recovery for their mental distress because they inhaled some insulation fibers because there was a physical impact.

But the clients in my case, who were just as scared as those people, do not.

And Justice O’Connor mentioned the fact that if somebody cut their finger here or I would add bumped their head during the getting ready for the ditching process, they have a physical impact or a physical injury which will support a recovery of their mental distress damages.

But the person sitting next to them who was more careful in putting on his life vest and getting his head between his knees, does not.

And I don’t think that makes a whole lot of sense.

Joel D. Eaton:

I’ve also suggested in the brief, most respectfully, that a mental injury is a bodily injury, an injury to the brain.

We now understand an awful lot more about the brain than we did 60 years ago.

It is a biochemical organ like other organs and when you suffer anxiety, freight, neuroses that arise out of these things, those are biochemical disorders to a bodily organ.

And I would submit that a mental injury in our present understanding is in fact a physical injury.

David H. Souter:

Well, is that accepted… I mean, that may be a, it may be a pathological kind of functioning, but it’s not an injury to the brain in the sense that there would be a tissue injury if a bullet went through it or a blunt object penetrated it.

I mean–

Joel D. Eaton:

That seems–

David H. Souter:

–That’s, that’s kind of the brain’s equivalent of my manifestation of high blood when I get scared.

That’s something other than a physical injury, isn’t it?

Joel D. Eaton:

–Well, that’s not an injury, high blood pressure.

David H. Souter:

That’s right.

It’s a response.

Joel D. Eaton:

That would be a normal injury aging process.

Sure.

David H. Souter:

It’s a response to something that I perceive.

And what you’re describing as a brain injury is just a response to something perceived, isn’t it?

Joel D. Eaton:

Well, post-traumatic disorder suffered by Vietnam veterans is recognized mental injury as I understand it because the body chemistry–

David H. Souter:

Well, it’s a mental injury, but it’s not a brain injury, is it?

Joel D. Eaton:

–The brain’s chemistry has been… gone out of whack.

It’s been adjusted or readjusted or whatever so that people have neuroses that are treatable by chemicals.

Paranoia, psychoses, things like that are all created by chemicals.

I don’t mean–

David H. Souter:

And you think that’s bodily injury?

Joel D. Eaton:

–If it–

David H. Souter:

As we normally use that term?

Joel D. Eaton:

–If it is caused by the stress of a terrifying incident and you have medical expert testimony that will relate the permanent mental injury, the stress, the psychoses, the neuroses, or whatever to this incident, yes, I think it is caused by the incident.

William H. Rehnquist:

Thank you, Mr. Eaton.

Joel D. Eaton:

Thank you.

William H. Rehnquist:

Mr. Murray, do you have rebuttal?

John Michael Murray:

Yes, Your Honor.

John Michael Murray:

Mr. Chief Justice, and may it please the Court:

I would like to point very briefly to two things that Mr. Eaton said.

Mr. Eaton fell into the trap in which the Eleventh Circuit fell in discussing the French meaning of the term “lesion corporelle”.

Antonin Scalia:

He didn’t fall into it.

He jumped in and invited the Eleventh Circuit to follow him, I think.

[Laughter]

John Michael Murray:

That might well be, Your Honor.

But he skipped from a determination… a discussion of “lesion corporelle” immediately to a discussion of “dommage”, “dommage personal”, “dommage patrimoniel”.

Our brief discusses “dommage materiel”, “dommage moral”.

Those type concepts are understood in the French law.

They were understood in 1929 when the Convention was drafted.

But “lesion corporelle” is a term, not necessarily a French legal term.

It’s no more a French legal term than a cut on the arm is a legal term in this country.

And “lesion corporelle” means an injury to a bodily part or bodily organ, and we simply ask that it be interpreted as such.

With regard to the subsequent conduct of the parties, I wanted to point out, number 1, that article 17 in its original French text as it was adopted in 1929 is what governs this Convention today.

There’s been no change in it.

There has been a change in the notification to passengers as required by the Montreal Agreement.

The term “personal injury” was substituted.

As Justice Souter pointed out, the use of personal injury is not inconsistent–

John Paul Stevens:

No, it’s not inconsistent, but there’s a question I think as to whether it’s an adequate disclosure if it doesn’t tell the passenger that there’s one category of personal injuries as to which there’s no recovery.

John Michael Murray:

–Well–

John Paul Stevens:

That’s the question, whether it’s an adequate disclosure.

John Michael Murray:

–Justice Stevens, if you remove Warsaw from the consideration and you put this in a simple negligence context, the term “personal injury” is bandied about by lawyers and judges and it has the connotation legally of being no recovery in simple negligence cases where there is mental injury unaccompanied by physical manifestation.

And that’s all we’re asking that this term… that this Convention be interpreted as and we think that the use of the term “personal injury” in a notice context is consistent with that.

And Professor Lowenfeld, who was the attendee of the United States at the Montreal Agreement said, and this is quoted in Floyd at page 1474, that no significance should be attached to the use of the word “personal injury”.

So it was not the framers’ intention in 1929, it was not the delegates’ intention in Montreal in 1966 to change the meaning of article 17.

In sum, we feel that compensable injuries under the Warsaw Convention should very clearly include only injuries where there is a… an objective, palpable, physical injury and that the Warsaw Convention should be the exclusive vehicle for recovery for passengers in international air transportation.

Thank you.

William H. Rehnquist:

Thank you, Mr. Murray.

The case is submitted.