No. 10-962

IN THE

ALASKA AIRLINES, INC.,Petitioner,

my. m

AZZA EID, AMRE R. GINENA, NAHID I. GINENA, REDA A. GINENA,

SABRINA KOBERT, M. SAMIR MANSOUR, NAZMI N. NAZMI,

M. MAGDY H. RASIKH, and HEBA NAZMI,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATESCOURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF AMICI CURIAEAIR TRANSPORT ASSOCIATION OF AMERICA, INC.

AND INTERNATIONAL AIR TRANSPORT ASSOCIATIONIN SUPPORT OF PETITIONER

ANDREW J. HARAKAS

Counsel of RecordBARRY S. ALEXANDER

CLYDE ~ CO US LLP

405 Lexington AvenueNew York, New York 10174(212) 710-3900andrew.harakas@clydeco.us

Attorneys for Amici CuriaeInternational AirTransport Association andAir Transport Associationof America, Inc.

DAVID A. BERG

AIR TRANSPORT ASSOCIATION

OF AMERICA, INC.

1301 Pennsylvania Avenue, N.W.Washington, D.C. 20004(202) 626-4000

Attorneys for Amicus CuriaeAir Transport Associationof America, Inc.

(Counsel continued on inside cover)

GARY DOERNHOEFER

INTERNATIONAL AIR TRANSPORT

ASSOCIATION

601 Pennsylvania Avenue, N.W.North Building, Suite 300Washington, D.C. 20004(202) 628-9292

Attorneys for Amicus CuriaeInternational Air TransportAssociation

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..................

PAGE

iii

INTEREST OF AMICI CURIAE .............

REASONS FOR GRANTINGTHE PETITION ..............................

THE NINTH CIRCUIT’S INCOR-RECT INTERPRETATION OFTHE TOKYO CONVENTIONWILL ADVERSELY AFFECTAVIATION SAFETY, AN ISSUEOF CRITICAL IMPORTANCE .....

A. The Ninth Circuit’s FailureTo Give Deference To TheDecision Of The Captain IsContrary To The TokyoConvention’s Goals AndThe Parties’ Intent ..............

1. The Conflict with theDrafting History ............

2. The Conflict with theUnited States’ Position ....

3. The Conflict withthe Decision of aSister Signatory ............

6

10

10

16

17

ii

Bo The Ninth Circuit’sImposition On The CaptainOf An Obligation To Investi-gate Conflicts With The TokyoConvention’s Goals And TheParties’ Intent ..................

II. THE NINTH CIRCUIT OPINIONCREATES DISUNITY BETWEENDOMESTIC AND INTERNA-TIONAL LAW AND A CONFLICTAMONG THE CIRCUITS ...........

CONCLUSION ................................

PAGE

18

21

25

.ooIIi

TABLE OF AUTHORITIESCases: PAGE

Abbott v. Abbott, 130 S. Ct. 1983(2010) .................................... 16n, 17

Al-Qudhai’een v. America WestAirlines, Inc., 267 F. Supp. 2d 841(S.D. Ohio 2003) ..........................23n

Atia v.. Delta Airlines, Inc.,692 F. Supp. 2d 693 (E.D. Ky. 2010) ...23n

Cerqueira v. American Airlines, Inc.,520 F.3d 1 (1st Cir. 2008) ...........18, 20-22

Christel v. AMR Corp., 222 F. Supp. 2d 335(E.D.N.Y. 2002) ......................... 20, 23n

Cordero v. CIA Mexicana de Aviacion, S.A.,681 F.2d 669 (9th Cir. 1982) ........ 18, 20, 22

Dasrath v. Continental Airlines, Inc.,228 F. Supp. 2d 531 (D.N.J. 2002) ......23n

El A1 Israel Airlines, Ltd. v. Tseng,525 U.S. 155 (1999) ......................17

Hammond v. Northwest Airlines,No. 09-12331, 2010 WL 2836899(E.D. Mich., Jul. 19, 2010) ..............23n

Henry v. United States,361 U.S. 98 (1959) .......................19

Holder v. Humanitarian Law Project,130 S. Ct. 2705 (2010) ................... 6

Nat’l Treasury Employees Union v.Von Raab, 489 U.S. 656 (1989) ......... 6

iv

PAGE

Ruta v. Delta Airlines, Inc., 322 F. Supp. 2d391 (S.D.N.Y. 2004) .................... 20, 23n

Shaffy v. United Airlines, Inc.,360 Fed. Appx. 729, 2009 WL 4882662(9th Cir. Dec. 10, 2009) ..................22

Smith v. Comair, Inc.,134 F.3d 254 (4th Cir. 1998) ............23

Williams v. Trans World Airlines,509 F.2d 942 (2d Cir. 1975) .....18, 20, 22-23

Zikry v. Air Canada, C.F. 1716/05(Haifa Magistrate Ct. Nov. 9, 2006)(Judge Tubi) (Israel) ................17, 19, 20

Treaties, Statutes and Rules:

Convention on Offenses and Certain OtherActs Committed on Board Aircraft,Sept. 14, 1963, 20 U.S.T. 2941,704 U.N.T.S. 219 (1969)("Tokyo Convention") ................... passim

Convention on the Suppression of Unlaw-ful Acts Relating to InternationalCivil Aviation, opened for signatureSept. 10, 2010, http://www.icao.int/DCAS2010/restr/docs/beijing_convention_multi.pdf(not yet in force) ......................... 8n

V

PAGE

Protocol Supplementary to the Conventionfor the Suppression of Unlawful Seizureof Aircraft, opened for signatureSept. 10, 2010, http://www.icao.int!DCAS2010/restr/docs/beijing_protocol_multi.pdf (not yet in force) ..............

49 U.S.C.

8n

§ 44902 ................5,9-10,13,20-24

49 U.S.C. § 44921 .............................

49 U.S.C.§ 44941 .............................

49U.S.C.§ 46504 .............................

14 C.F.R. § 121.580 ...........................

Sup. Ct. R. 37 .................................

16

9

15

15n

In

Legislative and DraftingHistory Materials:

Convention on Offenses Committed onBoard Aircraft: Executive Report No. 3:Hearings Before the United StatesSenate Committee on Foreign Relations,91st Cong., 1st Sess. (May 8, 1969) ....2

I International Conference on Air Law,Tokyo, August-September 1963,ICAO Doc 8565-LC.152-1,Minutes ........................ 8, 11-16, 19, 24

ICAO Assembly Resolution A33-4(33rd Sess., Montreal,25 September- 5 October 2001) ........3

vi

PAGE

S. Rep. No. 91-1083,1970 U.S.C.C.A.N. 3997(Aug, 10, 1970) .........................7, 10-12

Sen. Exec. Rpt. 90-L (Sept. 25, 1968) .......11, 14

Other Authorities:

R. Boyle & R. Pulsifer, The Tokyo Conven-tion on Offenses and Certain OtherActs Committed on Board Aircraft,30 J. Air L. & Comm. 305 (1964) .......

Federal Aviation Administration,Fact Sheet--Aircraft SecurityAccomplishments Since Sept. 11,September 5, 2002, http://www.faa.gov/news/fact_sheets/news_story.cfm?newsID=6239 .............................

Gerald F. FitzGerald, The Developmentof International Rules ConcerningOffences and Certain Other ActsCommitted on Board Aircraft,1 Can. Y.B. Int’l L. 230 (1963) ..........

11

7-8

Air Transport Association of America ("ATA")and International Air Transport Association("IATA"), as amici curiae, support the Petition ofAlaska Airlines, Inc. ("Alaska Airlines") for a Writof Certiorari seeking review of the judgment of theUnited States Court of Appeals for the Ninth Cir-cuit.1 The opinion of the Ninth Circuit is repro-duced in the Appendix to the Petition ("Pet. App.")at 1a-71a.

INTEREST OF AMICI CURIAE

ATA is a non-governmental trade associationfounded in 1936 and represents the leading U.S.airlines. IATA is a non-governmental interna-tional organization founded in 1945 by air carriersengaged in international air services and consistsof more than 250 Member airlines from 136 coun-tries.

ATA and IATA, as representatives of theirMember airlines, have a direct and substantialinterest in the critical aviation safety and securityissues before the Court. As the representatives ofthe world’s leading airlines, ATA and IATA are inthe unique position to explain the global impor-tance and effect of the decision below on aviation

1 Pursuant to Sup. Ct. R. 37.2, amici curiae certify thatcounsel of record for all parties received notice at least 10days prior to the due date of the amici curiae’s intention tofile this brief, and the parties have consented to the filing ofthis brief in correspondence on file with the Clerk’s office.Pursuant to Sup. Ct. R. 37.6, amici curiae state that nocounsel for any party authored this brief in whole or in part,and that no entity or person, aside from amici curiae, itsmembers, and its counsel, made any monetary contributiontowards the preparation and submission of this brief.

2

safety in general and on their hundreds of Mem-ber airlines, and the millions of passengers theycarry, in particular.

Both ATA and IATA seek to promote safe, reg-ular and economical air transport, and areinvolved in the development of aviation law andpolicy. IATA participated in the drafting of theTokyo Convention2 (as it has in the drafting ofevery recent ICAO international air law conven-tion) and ATA urged ratification, based on theirbelief that it would afford safety and security ben-efits to passengers, flight and cabin crews, and theowners and operators of aircraft. See Conventionon Offenses Committed on Board Aircraft: Exec-utive Report No. 3: Hearings Before the UnitedStates Senate Committee on Foreign Relations,91st Cong., 1st Sess. (May 8, 1969), at 32-33.

A proper interpretation of the Tokyo Conventionis essential to safe and orderly civil aviation, espe-cially in light of the enhanced security concernssince the tragic events of September 11, 2001 andthe

increase of the number and gravity ofreported incidents involving unruly or dis-ruptive passengers on board civil aircraft;¯ . . the implications of these incidents forthe safety of the aircraft and the passen-gers and crew on board these aircraft;[and]... the special environment of air-craft in flight and inherent risks con-nected therewith ....

’~ Convention on Offenses and Certain Other Acts Com-mitted on Board Aircraft, Sept. 14, 1963, 20 U.S.T. 2941, 704U.N.T.S. 219 (1969) (Pet. App. at 97a-Ilia).

3

ICAO Assembly Resolution A33-4 (33rd Sess.,Montreal, 25 September-5 October 2001).

For ATA, IATA and their Member airlines, theMajority Opinion has both immediate and long-term operational and safety consequences. More-over, as the first reported appellate court decisionin the world to address the Captain’s authority toact under the Tokyo Convention when faced witha potential threat to safety of the aircraft or goodorder/discipline on board, the Majority Opinionwill be looked to by courts across the globe forguidance and instruction when courts interpretthe Convention. Thus, the Majority Opinion mustbe reviewed to avoid the risk of detracting fromaviation safety around the world.

Accordingly, ATA and IATA have a substantialinterest on behalf of their Members to ensure aproper and uniform interpretation of the TokyoConvention that is consistent with the Conven-tion’s language and goals, and the drafters’ intent,to ensl~re aviation security and safety.

REASONS FOR GRANTING THE PETITION

Passengers on aircraft place not just their per-sonal safety, but their lives, in the hands of theflight crew. As explained by the Petition, this casepresents an important question of treaty inter-pretation involving a matter increasingly faced byaircraft Captains while in flight--whether a Cap-tain’s decision to take action as foreseen by theTokyo Convention to protect the safety of the air-craft while in flight and its occupants or to main-tain good order and discipline on board theaircraft is afforded deference. The Tokyo Con-

4

vention sought to protect the traveling public bygranting the Captain the power to act when facedwith a potential threat during flight. The MajorityOpinion, if allowed to stand, would lead to aircraftCaptains--who have primary responsibility for thesafety of all onboard--debating their decisions insituations where hesitation could lead to tragicand irreversible consequences. The Majority Opin-ion in this case misinterprets a carefully balancedinternational standard that stands for the propo-sition that the Captain be authorized to use hisown judgment regarding the identification of andresponse to potential threats to the safe operationof the flight and to respond without fear that hisjudgment will be second-guessed after the fact inthe neutral environment of a federal courthouse.

The Captain’s decision to exercise this authoritynecessarily must be reviewed with great defer-ence. The Majority Opinion disagreed, however,and incorrectly interpreted the Tokyo Conventionas:

1. not affording any deference to the Cap-tain’s decision to take action in responseto conduct that may jeopardize the safetyor good order and discipline on board theaircraft; and

2. requiring the Captain to conduct an inde-pendent investigation before taking actionin response to a potential threat, ratherthan relying on the flight attendant’sstatements (in this case that she had "lostcontrol" of the first class cabin).

Pet. App. at 14a-19a, 21a-24a, 27a-29a.

In so doing, the Majority Opinion needlessly cre-ates a conflict with the Tokyo Convention’s pur-pose and drafters’ intent, and the express view ofthe United States, as well as a conflict among theCircuits as to the interpretation of 49 U.S.C.§ 44902, the corresponding U.S. law governingdomestic flights, which gives air carriers broaddiscretion to refuse passage to persons for safetyreasons. The Petition should be granted becausethe Majority Opinion will have significant adversesafety ramifications in the real world beyond thefacts of this case. As the dissent correctly recog-nized:

the unintended but probable consequenceof the standard my colleagues adopt forjudging the in-flight conduct of a pilotunder the Tokyo Convention is risk to pas-senger and crew safety--an affront to theprincipal purpose of the Tokyo Conven-tion. The majority misinterprets the stan-dard and examines facts in hindsight thatwere unknown to the captain at the timeof the event, . . . .

Pet. App. at 37a-38a [footnote omitted].

6

THE NINTH CIRCUIT’S INCORRECTINTERPRETATION OF THE TOKYOCONVENTION WILL ADVERSELY

AFFECT AVIATION SAFETY, AN ISSUEOF CRITICAL IMPORTANCE

The problem created by the Majority Opinion ismore far reaching than whether the plaintiffs inthis action should be entitled to recover againstAlaska Airlines. The decision limits the Captain’sauthority to react to a wide range of possible dis-turbances and dangers that may arise on board anaircraft, including incidents of terrorism and airpiracy, which significantly impacts the safety oftransportation by air. Moreover, the decision mayhave a substantial impact on foreign courts’ inter-pretation of the Tokyo Convention, rendering itslikely impact global in nature.

Even before the events of 9/11, the Court rec-ognized an "observable national and internationalhijacking crisis," and that "the Government ha[s]a compelling interest in preventing [this] other-wise pervasive societal problem..." Nat’l TreasuryEmployees Union v. Von Raab, 489 U.S. 656, 675n.3 (1989). Thus, as the Court recently stated"[e]veryone agrees that the Government’s interestin combating terrorism is an urgent objective ofthe highest order." Holder v. Humanitarian LawProject, 130 S. Ct. 2705, 2724 (2010). Of course,the aircraft commander directly faces these risksand is on the front line combating terrorism whilein flight.

The Tokyo Convention was developed at a timewhen there was substantial concern over an

7

increase in passenger incidents, including hijack-ing, that threatened safety during travel by air,and the safety of aviation was the principal objec-tive of the Convention. See S. Rep. No. 91-1083,1970 U.S.C.C.A.N. at 3997 (Aug. 10, 1970); Pet.App. at 115a; Gerald F. FitzGerald, The Develop-ment of International Rules Concerning Offencesand Certain Other Acts Committed on Board Air-craft, 1 Can. Y.B. Int’l L. 230, 230, 240-41 & n.24,244 n.29 (1963). The threat of terrorism to avia-tion is even greater today than it was when theTokyo Convention was drafted, as the threat isalways evolving and terrorist tactics are becomingmore sophisticated in an effort to circumvent air-line security measures. As the FAA has warned,any passenger disturbance or commotion, even onethat appears to be minor or harmless, must betaken seriously and considered suspicious becauseit coul.d be a diversion for more serious acts suchas obtaining access to the flight deck or gatheringintelligence on the carrier’s security responses andvulnerabilities for use at a later time (e.g., the9/11 terrorist dry-runs, the recent shipments ofpackages from Yemen to Chicago). See FederalAviation Administration, Fact Sheet--AircraftSecurity Accomplishments Since Sept. 11, Septem-ber 5, 2002, http://www.faa.gov/news/fact_sheets/news_storyocfm?newsID=6239. For this reason,governmental authorities and the aviation indus-try need to be vigilant and their response imme-diate and flexible.’~

3 fin recognition of the evolving risks and under theauspices of ICAO, two counterterrorism treaties devoted toimproving aviation security were adopted in Beijing, Chinain September 2010, which stress the State Parties’ concernsover the "new types of threats against civil aviation

8

The Tokyo Convention is the cornerstone of thelaw regarding action taken in response to the myr-iad threats that may arise during a flight, andcompels uniform recognition of the Captain’sauthority to act in response to these threats. Theprimary means by which the Tokyo Conventionsought to achieve its security and safety goals wasto grant the "aircraft commander," who is the ulti-mate authority on the aircraft while in flight,broad authority to take necessary action inresponse to acts on board the aircraft that mayjeopardize the safety of the aircraft/personstherein or the good order and discipline on board.See Tokyo Convention, Articles 6, 8 and 9; see alsoFitzGerald, supra, at 232-33. A broad immunityprovision was included in the Convention (Article10) to ensure swift and decisive action to preservethe safety of the aircraft and its passengers. Id. at247 (absent immunity, "[t]he aircraft commander,crew members and others would be reluctant toact against persons prejudicing safety, good orderand discipline"); I International Conference on AirLaw, Tokyo, August-September 1963, ICAO Doc8565-LC.152-1, Minutes at 223 ("Minutes") (with-out an explicit immunity provision, "the aircraftcommander might have to hesitate and might, per-

requir[ing] new concerted efforts and policies of cooperationon the part of the States." See Convention on the Suppres-sion of Unlawful Acts Relating to International CivilAviation, opened for signature Sept. 10, 2010, http://www.icao.int/DCAS2010/restr/docs/beijing_convention_multi.pdf(not yet in force); Protocol Supplementary to the Conventionfor the Suppression of Unlawful Seizure of Aircraft, openedfor signature Sept. 10, 2010, http://www.icao.int/DCAS2010/restr/docs/beijing_protocol_multi.pdf (not yet in force). Thesetreaties were strongly supported and signed by the U.S., buthave not yet been ratified.

9

haps, do nothing in circumstances in which heshould have acted."). As the United States recog-nized in the Amicus Brief presented to the NinthCircuit: "[g]iven the breadth of discretion affordedthe aircraft captain and the purpose of the Con-vention’s grant of immunity, review of actionstaken by a captain pursuant to the Tokyo Con-vention must be highly deferential." Pet. App. at122a (emphasis added). A deferential standardalso is consistent with 49 U.S.C. §44902, the cor-responding U.S. law governing domestic flights,and 49 U.SoC. § 44941, which provides immunityfor reporting suspicious activities in air trans-portation absent knowing falsity or recklessness.

Rather than uphold the central goal of safety ofthe Tokyo Convention’s drafters and follow theviews of the United States, the Majority Opinioncharted an opposite course that is inimical to theTokyo Convention and the position of the UnitedStates. If allowed to stand, the Majority Opinionwill inhibit safety in two ways: (1) by failing togive any deference to actions taken by the Captainin response to a potential threat, which may leadto delay or inaction due to fear of potential crim-inal and/or civil liability in the event his or herdetermination later is proven incorrect, and (2) byadding a requirement found nowhere in the lan-guage of the Convention that the Captain engagein an independent investigation of a disturbancebefore taking action, thereby interfering with atimely response and placing the Captain, who maynot leave the cockpit and is primarily focused onoperating the aircraft safely, in a difficult, if notimpossible, position.

10

The treaty question presented herein is signifi-cant and critical, and requires immediate reviewby the Court, as waiting for the issue to percolateor for other Circuit Courts of Appeal to addressthe error of the Majority Opinion could have seri-ous safety consequences.

A. The Ninth Circuit’s Failure To Give Def-erence To The Decision Of The Captain IsContrary To The Tokyo Convention’sGoals And The Parties’ Intent

The Majority Opinion’s failure to give any def-erence to the Captain’s decision necessarilyresults in a negligence-based "reasonableness"standard to determine whether the Captain had"reasonable grounds to believe" a passenger wasabout to commit (1) an "act which may jeopardizethe safety of the aircraft or of persons or propertytherein" or "the good order and discipline onboard" or (2) "offences against penal law." SeeTokyo Convention, Articles 1, 6, 8 and 9. This iscontrary to the goals and drafting history of theTokyo Convention, the position taken by theUnited States below and the decision of the onlySister Signatory to address this issue. It also con-flicts with courts’ consistent interpretation of 49U.S.C. § 44902.

1. The Conflict with the Drafting History.While the drafters of the Tokyo Convention weremindful of the interests of passengers, the safetyof aviation was the principal objective of the Con-vention. See 1970 U.S.C.C.A.N. at 3997; Pet. App.at 115a. To achieve the safety objective, the "Con-vention makes more certain the powers andauthority of an aircraft commander and estab-

11

lishes a uniform international standard for judg-ing the actions of the commander." 1970U.S.C.C.A.N. at 3997. Thus, the Convention wasdeliberately drafted not only to bestow broadauthority, but also to confer considerable discre-tion, to the Captain as to whether, when, and howto act. See Sen. Exec. Rpt. 90-L, at III-IV, VI(Sept. 25, 1968); see R. Boyle & R. Pulsifer, TheTokyo Convention on Offenses and Certain Other ActsCommitted on Board Aircraft, 30 J. Air L. & Comm.305, 328-29 (1964).

The reason for conferring these powers and dis-cretion to the Captain was recognition of the Cap-tain’s special responsibility and the uniqueenvironment in which he operates. As explainedby the U.S. delegate:

the aircraft commander was in a specialposition: The doors were closed and he didnot have the local police force immediatelyavailable. Hence, if a passenger endan-gered the life or safety of another pas-senger or threatened the safety of theaircraft, the aircraft commander and hiscrew should be authorized to take what-ever immediate action was necessary.

Minutes at 166; see also Minutes at 168 (FrenchDelegate: "The justification for the powers givento the aircraft commander was that the aircraftconstituted a closed universe which was isolatedfrom the external world and from the influence ofauthorities that were normally competent toact.").

12

Moreover, the drafters recognized that a Cap-tain’s decisions would often require immediateaction based on incomplete facts:

He would be exercising the additionalpowers concerned in the interest of thesmall community traveling with him inthe aircraft. While [the aircraft comman-der] would be comparable to the captain ofa ship, he would have to deal with situa-tions that might be more urgent ....

The Conference should give some guid-ance to the aircraft commander who wasgiven powers in the general interest. Ifnothing were included in the Conventionon the point under discussion, the aircraftcommander might have to hesitate andmight, perhaps, do nothing in circum-stances in which he should have acted.

Minutes at 223; see also Minutes at 166, 177-79,223.

Thus, to allow the Captain to act without hesi-tation and fear of subsequent retaliation throughcivil suit or otherwise, Article 10 confers immu-nity to him and others for actions taken in accor-dance with the Convention. "This immunityshould enhance the proper attitudes and actionsnecessary to significantly contribute to safety offlight in international aviation." 1970U.S.C.C.A.N. at 3998.

By improperly equating "reasonable grounds"with a negligence-type "reasonable person" stan-dard of care not reflecting the deference the

13

drafters clearly intended to afford the Captain’sactions, the Majority Opinion fails to recognize theCaptain’s unique position and special responsi-bility for the security and safety of all on board aswell as those on the ground. In fact, the drafters ofthe Convention specifically rejected a fault-basedstandard. See Minutes at 219-23; see also Minutesat 222 ("introducing the rather difficult concept of’faute’ [fault]... did not seem to be very appro-priate to apply to the kind of error which the air-craft commander might make under variousarticles .... ").

In light of the discretion due to the actions ofthe Captain and the rejection of a fault-basedstandard for review of those actions, Petitionerand Amici ATA, IATA and ALPA advocated that inthe exercise of the powers conferred by the TokyoConve:ation, the Captain should be entitled toimmunity unless the Captain acted in an "arbi-trary and capricious" manner. Such a standardstrikes a proper balance between the goal of safetyand the interests of the passengers by givingeffect to the discretion the drafters conferred uponthe Captain without conferring blanket immunity,and is’. consistent with how U.S. courts havereviewed actions taken under domestic legislationthat is the counterpart to the Tokyo Convention(49 U.S.C. § 44902) for the last 35 years.

The iMajority rejected the relevance of this def-erential standard, stating that "the treaty and itsdrafting history say nothing about ’arbitrary andcapricious’" and that such a standard is "normallyapplied to actions of government agencies or judi-cial officers; it is seldom used to judge the conductof individuals in the real world." Pet. App. at 14a,

14

18a. These conclusions are incorrect, unjustifiedand dangerous.

The U.S. delegate specifically referred to an"arbitrary and capricious" standard during thenegotiation of the Convention:

Within the general concept of UnitedStates law, the phrase "reasonablegrounds" would give the impression thatthe aircraft commander would be requiredto have a substantial basis for his belief,that he could not act on the basis of factswhich were inadequate to support hisbelief to the effect that a person had com-mitted or was about to commit the kind ofact under consideration. In other words,the aircraft commander could not actarbitrarily or capriciously.

Minutes at 155 (emphasis added). The MajorityOpinion omits the final sentence. Pet. App. at 15a-16a. See also Sen. Exec. Rpt. 90-L, Article-by-Arti-cle Analysis at 8 (referencing "arbitrary andcapricious" as the standard by which to assessconduct under Article 9).

Moreover, the drafters’ subsequent discussion ofthe term "reasonable grounds" and the extent ofimmunity further reflects the drafters’ under-standing that the Captain’s actions were meant tobe assessed by a deferential standard akin to thearbitrary and capricious standard typicallyapplied to governmental action. See Minutes at174 (aircraft commander could not "exercise hispowers in an arbitrary way"); Minutes at 221-22,226-27 (immunity allowed unless the commander"acted maliciously" or "intentionally abused

15

his powers or if he was guilty of serious negli-gence.") (emphasis added).

The Majority Opinion also ignored the extensivedrafting history when it rejected the deferentialarbitrary and capricious standard as a standardthat is "normally applied to actions of governmentagencies or judicial officers; [and] it is seldomused to judge the conduct of individuals in the realworld." Pet. App. at 18a. The drafters made clearthat the Captain was not to be considered likeother ihndividuals in the real world and recognizedthat the Captain operates in a constrained envi-ronment with responsibilities and correspondingauthority far beyond those of an ordinary indi-vidual.

Just as the Majority Opinion recognized that theCaptain is the "officer charged with enforcing" 49U.S.C. §465044 (Pet. App. at 26a-27a), thedrafters recognized that, while the Convention didnot intend to convert the Commander into a policeofficer, the Commander was conferred with certainquasi-official police powers and authorized by theTreaty to invoke those powers and, therefore,should, be accorded immunity in doing so. See Min-utes at 197 (U.S. delegate noting importance ofgranting uniform immunity as afforded police offi-cers in various states); Minutes at 154 (it is

4 Under 49 U.S.C. § 46504, it is a criminal offense(punishable by fine and/or imprisonment up to 20 years) fora person to assault or intimidate a member of the flight crewin any way which interferes with his or her ability to per-form his or her duties. See also 14 C.F.R. § 121.580 ("No per-son may assault, threaten, intimidate, or interfere with acrewmember in the performance of the crewmember’s dutiesaboard an aircraft being operated under this part.").

16

"understood that Articles 5 to 9 referred to thepowers of the aircraft commander and other per-sons. The aircraft commander was considered tobe a public official"); Minutes at 160 (the Con-vention "gave certain police powers to the aircraftcommander"); Minutes at 163 ("Article 5(2) dealtwith the grant of the power to perform certainacts of a police nature"); Minutes at 304 ("Whatthe Conference was seeking to do in the Conven-tion was to invest in the aircraft commander and,in a subsidiary manner, in the other crew mem-bers a quasi-police power."); Minutes at 313 ("acertain kind of power of police officer was con-ferred upon the aircraft commander").

In light of the special power conferred, it is notonly logical, but imperative, that the acts of theCaptain be afforded the same degree of deferencegiven to actions of governmental agencies or offi-cials, which is exactly what was intended by thedrafters. Cf. 49 U.S.C. § 44921(h) (immunity topilots appointed as federal flight deck officers foractions taken absent "gross negligence or willfulmisconduct").

2. The Conflict with the United States" Posi-tion. The Majority Opinion also ignores the clearand unequivocal position taken by the UnitedStates as amicus curiae, which "is entitled togreat weight,’’’~ that the Captain’s exercise ofauthority under the Tokyo Convention is to bereviewed with great deference. Pet. App. at 122a,125a-126a, 130a.

5 Abbott v. Abbott, 130 S. Cto 1983, 1993 (2010).

17

3. The Conflict with the Decision of a SisterSignatory. As with its analysis of the Conven-tion’s drafting history, the Majority Opinion’sreview of the opinion issued in Zikry v. AirCanada, Civil File No. 1716/05 (Haifa MagistrateCt. Nov. 9, 2006) (Judge Tubi) (Israel) by theIsraeli Magistrates Court of Haifa--the court of asister signatory (Israel)--simply ignored essentiallanguage that contradicts the Majority Opinion’sinterpretation. As this Court has stated, in inter-preting international treaties "’It]he "opinions ofour sister signatories" . . . are "entitled to con-siderable weight.’ .... Abbott, 130 S. Ct. at 1993(quoting El Al Israel Airlines, Ltd. v. Tseng, 525U.S. 155, 176 (1999)). In Zikry, the court rejecteda standard similar to the one adopted by theNinth Circuit in favor of one giving the Captainsubstantial deference. The court specifically notedthat the Tokyo Convention confers "extensive andwide authority" upon the Captain. See Zikry,¶ 16.1. The Majority Opinion’s brief discussion ofZikry omitted this aspect of the Israeli court’sdecision, and in so doing failed to give it the con-siderable weight to which it is entitled, especiallyin light of the fact that it was consistent with theviews of the United States.

The Majority Opinion’s application of a non-def-erential, negligence-based standard to review theCaptain’s actions with the luxury of informationdeveloped in hindsight is incorrect and inimical toaviation safety and, accordingly, this issue is ofsubstantial importance and warrants immediatereview by the Court.

18

B. The Ninth Circuit’s Imposition On TheCaptain Of An Obligation To InvestigateConflicts With The Tokyo Convention’sGoals And The Parties’ Intent

The Majority Opinion further thwarts the Con-vention’s goals and drafters’ intent by imposing anindependent duty to investigate upon the Captain,who, according to the Majority Opinion, is notentitled to rely on what he is told by the flightcrew. The duty to investigate imposed by theMajority Opinion is clearly contrary to the inten-tion of the drafters, the express position of theU.S. amicus and existing federal law.

In determining whether the Captain’s actions inthis case met the "reasonableness" standard, theMajority Opinion focused on the events as allegedby plaintiffs, including facts that were not andcould not have been known to the Captain at thetime of his actions. As the dissent correctly noted,however, the issue is whether the Captain had"reasonable grounds to believe... ," and so hisperception is the only one that is relevant--"hind-sight and second-guessing have no place in theanalysis." Pet. App. 45a, 66a. accord Cordero v.CIA Mexicana de Aviacion, S.A., 681 F.2d 669, 672(9th Cir. 1982); Cerqueira v. American Airlines,Inc., 520 F.3d 1, 14-16 (1st Cir. 2008); Williams v.Trans World Airlines, 509 F.2d 942, 948 (2d Cir.1975). Unlike the Majority Opinion, the dissentingopinion is in accord with the Convention’s lan-guage and the parties’ intent.

The Tokyo Convention authorizes the Captain toact not only when an act has been committed butwhen there is a potential threat:

19

Article 1(1)(b): The Convention applies toacts that "may" jeopardize the safety ofthe aircraft or the persons therein.

Articles 6(1) and 8(1): The Captain mayact when he has reasonable grounds tobelieve that a person "is about to commit"an act that jeopardizes the safety of theaircraft or the persons therein or the goodorder and discipline on board.

By these provisions, the drafters authorizedaction, even when there were no "concrete facts orpreparatory facts" and recognized that the Cap-tain must often make a quick decision to act basedon limited information. See Minutes at 166, 177-79,223. Thus, "the Convention permits a captainto rely on his reasonable judgment, withoutsearching out ’concrete’ facts on which to base thatjudgment." Pet App. at 126a.

As the United States further explained in itsamicus brief, "the pilot must therefore be able torely on the reports of the cabin crew and keeptheir attention focused on flying the plane." Pet.App. at 131a; see also Pet. App. at 129a-130a.Thus, a court’s review under the Tokyo Conven-tion should be limited to the facts known to theCaptain, much as the existence of "’reasonablegrounds’" under federal arrest statutes dependsonly on "’the facts and circumstances known to theofficer .... ’" Pet. App. at 130a (quoting Henry v.United States, 361 U.S. 98, 102 (1959)).

The Israeli court in Zikry likewise found thatthe facts should not be considered with hindsight,"but at the time of the actual event" and that itdid not matter if "post factum" the captain’s

20

beliefs are proven false (Zikry at ¶¶ 8, 15). Simi-larly, U.S. courts applying 49 U.S.C. § 44902(b)have understood that because of the nature of airtransportation, the pilot’s decision to take actionwould have to rest on something less than perfectknowledge and absolute certainty and, therefore,the Captain is entitled to rely upon a flight atten-dant’s representations, and is not required to con-duct an independent investigation. See Cerqueira,520 F.3d at 15; Cordero, 681 F.2d at 672;Williams, 509 F.2d at 948; Ruta v. Delta Airlines,Inc., 322 F. Supp. 2d 391,397-98 (S.D.N.Y. 2004);Christel v. AMR Corp., 222 F. Suppo 2d 335, 340(E.D.N.Y. 2002); see also Pet. App. at 126a-133a.

Thus, the Majority Opinion’s finding that theflight crew could not rely on cabin crew reports,but should have conducted an independent inves-tigation before acting (e.g., asked questions and/orlooked through the cockpit door portal to see whatwas going on in the cabin) (Pet. App. at 21a-22a),is contrary to the structure and goals of the Con-vention as well as the views expressed by theUnited States. Most importantly, as the UnitedStates cautioned, "FAA regulations make it diffi-cult, if not impossible, for a captain to personallyinvestigate potential disturbances in the passen-ger cabin," and "the Convention contemplates thatany investigation will be done by competentauthorities who, unlike pilots, are trained toinvestigate such incidents and sort out competingstories." Pet. App. at 131a-132a.

The Majority Opinion will inhibit the Captain’sability to act in an emergency situation, andtransportation by air will be more dangerous as aresult--which is exactly what the Tokyo Conven-

21

tion sought to avoid. With the enormous potentialdanger associated with transportation by air hav-ing been so vividly demonstrated less than onedecade ago, the Ninth Circuit’s decision warrantsimmediate review by the Court.

II

THE NINTH CIRCUIT OPINIONCREATES DISUNITY BETWEEN

DOMESTIC AND INTERNATIONAL LAWAND A CONFLICT AMONG THE CIRCUITS

Review also is warranted because the MajorityOpinion creates disunity between U.S. domesticand international law, and a direct conflict amongthe Circuits.

The Majority Opinion correctly recognized thatthe interpretation of 49 U.S.C. § 44902, which pro-vides that an air carrier "may refuse to transporta passenger or property the carrier decides is, ormight be, inimical to safety," is relevant to aproper interpretation of the Tokyo Convention,but then opted to reject the established precedentthat an air carrier’s decision to refuse transportunder § 44902(b) is not subject to liability unlessthe decision is arbitrary or capricious.

The Majority recognized that their interpreta-tion of § 44902(b) is in conflict with the First Cir-cuit’s decision in Cerqueira, 520 F.3d 1, but heldthat their interpretation of the Tokyo Convention"is consistent with the [Ninth Circuit’s] casesapplying the analogous statute for domestic airtravel,, 49 U.S.C. § 44902." Pet. App. at 17a-19a.The Majority Opinion’s holding, however, is

22

directly contrary to previous interpretations of§ 44902(b) by the Ninth Circuit itself as well asthose of the First, Second and Fourth Circuits:

Ninth Circuit

¯ Cordero v. CIA Mexicana de Aviacion, S.A.,681 F.2d at 671-72 and n.4, expressly adoptedthe "arbitrary and capricious" test set forth bythe Second Circuit in Williams, 509 F.2d at948, and held that the district court had"properly instructed the jury in the preciselanguage of the Williams test."

¯ Shaffy v. United Airlines, Inc., 360 Fed. Appx.729, 730, 2009 WL 4882662, at "1 (9th Cir.Dec. 10, 2009), following Cordero and holdingthat "[t]he test for whether a refusal to trans-port is permissible ’rests upon the facts andcircumstances of the case as known to the air-line at the time it formed its opinions andmade its decision and whether or not the opin-ion and decision were rational and reasonableand not capricious or arbitrary.’"

First Circuit

¯ Cerqueira v. American Airlines, Inc., 520 F.3dat 14, agreed "with Williams and [held] thatan air carrier’s decisions to refuse transportunder § 44902(b) are not subject to liabilityunless the decision is arbitrary or capricious."

Second Circuit

¯ Williams v. Trans World Airlines, 509 F.2d at948, found that "It]he test of whether or notthe airline properly exercised its power unders 1511 [the predecessor to § 44902(b)] to refusepassage to an applicant or ticket-holder rests

23

upon the facts and circumstances of the caseas known to the airline at the time it formedits opinion and made its decision and whetheror not the opinion and decision were rationaland reasonable and not capricious or arbitraryin the light of those facts and circumstances.They are not to be tested by other facts laterdisclosed by hindsight."

Fourth Circuit¯ Smith v. Comair, Inc., 134 F.3d 254, 259 (4th

Cir. 1998), holding that "[p]ursuant to 49U.S.C. § 44902(b), airlines must be accordedbroad discretion in making boarding decisionsrelated to safety. Allowing [plaintiff’s] claim toproceed would frustrate this important federalobjective. Airlines might hesitate to refusepassage in cases of potential danger for fear ofstate law contract actions claiming refusal totransport."

The Ninth Circuit had followed Williams andapplied an arbitrary and capricious standardunder 49 U.S.C. § 44902 until its decision below,which created a conflict not only with the priorNinth Circuit cases, but also with case law of theFirst, Second and Fourth Circuits and numerousdistrict courts.~ Pursuant to the standard set forth

6 See, e.g., Hammond v. Northwest Airlines, No. 09-12331, 2010 WL 2836899, at *4 (E.D. Mich., Jul. 19, 2010);Atia v. Delta Airlines, Inc., 692 F. Supp. 2d 693, 701 (E.D.Ky. 2010); Ruta, 322 F. Supp. 2d at 397-98; Al-Qudhai’een v.America West Airlines, Inc., 267 F. Supp. 2d 841, 847-48(S.D. Ohio 2003); Dasrath v. Continental Airlines, Inc., 228F. Supp. 2d 531, 538-39 (D.N.J. 2002); Christel, 222 F. Supp.2d at 340-41.

24

by the Majority Opinion, if an airline is confrontedby an unruly passenger incident on the ground,where law enforcement is available and safetyissues have far less consequence, the Captain’sresponse will be judged on the facts as theyappeared at the time, but if the same situationarises in flight, the Captain is required to conductan investigation before responding to avoid after-the-fact second-guessing. Moreover, the MajorityOpinion’s adoption of a non-deferential fault-based standard under the Tokyo Convention cre-ates a conflict between the law to be applied tointernational flights governed by the Conventionand the standard applied by courts outside theNinth Circuit to domestic flights governed by 49U.S.C. § 44902.

It is unrealistic to expect the Captain to knowwhether the route he is operating at the time adisturbance or emergency arises is governed by adeferential or non-deferential standard withregard to a later review of his actions. See Minutesat 181-84, 188, 193, 195, 214-15, 223, 311 (notingthat the Captain was not a lawyer, and should notbe expected to know the laws of the variousStates). Accordingly, in an effort to avoid potentialliability, airlines will base their policies, proce-dures and training for all flights on the non-def-erential standard applied by the Ninth Circuit,which will adversely impact the safety of airtransportation throughout the world.

25

CONCLUSION

For the foregoing reasons, the Court shouldgrant the petition for a writ of certiorari.

Dated: February 25, 2011

Respectfully submitted,

ANDREW J. HARAKAS

Counsel of RecordBARRY S. ALEXANDER

CLYDE ~ CO US LLP

405 Lexington AvenueNew York, New York 10174(212) 710-3900andrew.harakas@clydeco.us

Counsel for Amici CuriaeAir Transport Associationof America, Inc. andInternational AirTransport Association

Of Counsel:

DAVID A. BERG

AIR TRANSPORT ASSOCIATION

OF AMERICA, INC.1301 Pennsylvania Avenue, N.W.Washington, D.C. 20004(202) 626-4000

26

GARY DOERNHOEFER

INTERNATIONAL AIR TRANSPORT

ASSOCIATION601 Pennsylvania Avenue, N.W.North Building, Suite 300Washington, D.C. 20004(202) 628-9292