author: Justice Breyer

text:
    NYNEX CORP. et al. v. DISCON, INC.
    No. 96-1570.
    Argued October 5,1998
    Decided December 14, 1998

      James R. Young argued the cause for petitioners. With him on the briefs were John Thorne, Richard G. Taranto, Guy Miller Struve, James D. Liss, and Vincent T Chang.

      Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae. With him on the brief were Solicitor General Waxman, Assistant Attorney General Klein, Deputy Assistant Attorney General Melamed, Barbara McDowell, Catherine G. O’Sullivan, Mark S. Po-pofsky, and Debra A. Valentine.

      Lawrence C. Brown argued the cause for respondent. With him on the brief was John H. Ring III.

      Briefs of amid curiae urging reversal were filed for the American Automobile Manufacturers Association by Stephen M. Shapiro, Roy T. Englert, Jr., Donald M. Falk, and Mark Slywynsky; for the Business Roundtable by Thomas B. Leary and Robert C. Weinbaum; for GTE Corporation by Christopher Landau, Paul T. Cappuccio, William P. Barr, and M. Edward Whelan III; and for the Association of the Bar of the City of New York by Richard M. Sternr. Professors

        Mark R. Patterson and Stephen F. Ross filed a brief for Law Professors as amid curiae urging affirmance.

   Justice Breyer

delivered the opinion of the Court.

In this ease we ask whether the antitrust rule that group boycotts are illegal per se as set forth in Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U. S. 207, 212 (1959), applies to a buyer’s decision to buy from one seller rather than another, when that decision cannot be justified in terms of ordinary competitive objectives. We hold that the per se group boycott rule does not apply.

í — I

Before 1984 American Telephone and Telegraph Company (AT&T) supplied most of the Nation’s telephone service and, through wholly owned subsidiaries such as Western Electric, it also supplied much of the Nation’s telephone equipment. In 1984 an antitrust consent decree took AT&T out of the local telephone service business and left AT&T a long-distance telephone service provider, competing with such firms as MCI and Sprint. See M. Kellogg, J. Thorne, & P. Huber, Federal Telecommunications Law §4.6, p. 221 (1992). The decree transformed AT&T's formerly owned local telephone companies into independent firms. At the same time, the decree insisted that those local firms help assure competitive long-distance service by guaranteeing long-distance companies physical access to their systems and to their local customers. See United States v. American Telephone & Telegraph Co., 552 F. Supp. 131, 225, 227 (DC 1982), aff’d sub nom. Maryland v. United States, 460 U. S. 1001 (1983). To guarantee that physical access, some local telephone firms had to install new call-switching equipment; and to install new call-switching equipment, they often had to remove old call-switching equipment. This ease involves the business of removing that old switching equipment (and other obsolete telephone equipment) — a business called “removal services”

Diseon, Inc., the respondent, sold removal services used by New York Telephone Company, a firm supplying local telephone service in much of New York State and parts of Connecticut. New York Telephone is a subsidiary of NYNEX Corporation. NYNEX also owns Materiel Enterprises Company, a purchasing entity that bought removal services for New York Telephone. Diseon, in a lengthy detailed complaint, alleged that the NYNEX defendants (namely, NYNEX, New York Telephone, Materiel Enterprises, and several NYNEX related individuals) engaged in unfair, improper, and anticompetitive activities in order to hurt Diseon and to benefit Discon’s removal services competitor, AT&T Technologies, a lineal descendant of Western Electric. The Federal District Court dismissed Discon’s complaint for failure to state a claim. The Court of Appeals for the Second Circuit affirmed that dismissal with an exception, and that exception is before us for consideration.

The Second Circuit focused on one of Discon’s specific claims, a claim that Materiel Enterprises had switched its purchases from Diseon to Discon’s competitor, AT&T Technologies, as part of an attempt to defraud local telephone serviee customers by hoodwinking regulators. According to Discon, Materiel Enterprises would pay AT&T Technologies more than Discon would have charged for similar removal services. It did so because it could pass the higher prices on to New York Telephone, which in turn could pass those prices on to telephone consumers in the form of higher regulatory-agency-approved telephone service charges. At the end of the year, Materiel Enterprises would receive a special rebate from AT&T Technologies, which Materiel Enterprises would share with its parent, NYNEX. Discon added that it refused to participate in this fraudulent scheme, with the result that Materiel Enterprises would not buy from Discon, and Discon went out of business.

These allegations, the Second Circuit said, state a cause of action under §1 of the Sherman Act, though under a “different legal theory” from the one articulated by Discon. 93 F. 3d 1055, 1060 (1996). The Second Circuit conceded that ordinarily “the decision to discriminate in favor of one supplier over another will have a pro-competitive intent and effect.” Id., at 1061. But, it added, in this case, “no such pro-competitive rationale appears on the face of the complaint.” Ibid. Rather, the complaint alleges Materiel Enterprises’ decision to buy from AT&T Technologies, rather than from Discon, was intended to be, and was, “anti-competitive.” Ibid. Hence, “Diseon has alleged a cause of action under, at least, the rule of reason, and possibly under the per se rule applied to group boycotts in Klor’s, if the restraint of trade ‘“has no purpose except stifling competition.’”” Ibid, (quoting Oreck Corp. v. Whirlpool Corp., 579 F. 2d 126, 131 (CA2) (en banc) (in turn quoting White Motor Co. v. United States, 372 U. S. 253, 263 (1963)), cert. denied, 439 U. S. 946 (1978)). For somewhat similar reasons the Second Circuit believed the complaint stated a valid claim of conspiracy to monopolize under §2 of the Sherman Act. See 93 F. 3d, at 1061-1062.

The Second Circuit noted that the Courts of Appeals are uncertain as to whether, or when, the per se group boycott rule applies to a decision by a purchaser to favor one supplier over another (which the Second Circuit called a “two-firm group boycott”). Compare Com-Tel, Inc. v. DuKane Corp., 669 F. 2d 404, 411-413, and nn. 13, 16 (CA6 1982); Cascade Cabinet Co. v. Western Cabinet & Millwork Inc., 710 F. 2d 1366, 1370-1371 (CA9 1983), with Construction Aggregate Transport, Inc. v. Florida Rock Industries, Inc., 710 F. 2d 752, 776-778 (CA11 1983). We granted certiorari in order to consider the applicability of the per se group boycott rule where a single buyer favors one seller over another, albeit for an improper reason.

II

As this Court has made clear, the Sherman Act’s prohibition of “[e]very” agreement in “restraint of trade,” 26 Stat. 209, as amended, 15 U. S. C. § 1, prohibits only agreements that unreasonably restrain trade. See Business Electronics Corp. v. Sharp Electronics Corp., 485 U. S. 717, 723 (1988) (citing National Collegiate Athletic Assn. v. Board of Regents of Univ. of Okla., 468 U.S. 85, 98 (1984)); Standard Oil Co. of N. J. v. United States, 221 U. S. 1, 59-62 (1911); 2 P. Areeda & H. Hovenkamp, Antitrust Law ¶ 320b, p. 49 (1995). Yet certain kinds of agreements will so often prove so harmful to competition and so rarely prove justified that the antitrust laws do not require proof that an agreement of that kind is, in fact, anticompetitive in the particular circumstances. See State Oil Co. v. Khan, 522 U. S. 3, 10 (1997); Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U. S. 284, 289-290 (1985); 2 Areeda & Hovenkamp, supra, ¶ 320b, at 49-52. An agreement of such a kind is unlawful per se. See, e.g., United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 218 (1940) (finding horizontal price-fixing agreement per se illegal); Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U. S. 373, 408 (1911) (finding vertical price-fixing agreement per se illegal); Palmer v. BRG of Ga., Inc., 498 U. S. 46, 49-50 (1990) (per curiam) (finding horizontal market division per se illegal).

The Court has found the per se rule applicable in certain group boycott eases. Thus, in Fashion Originators’ Guild of America, Inc. v. FTC, 312 U. S. 457 (1941), this Court considered a group boycott created by an agreement among a group of clothing designers, manufacturers, suppliers, and retailers. The defendant designers, manufacturers, and suppliers had promised not to sell their clothes to retailers who bought clothes from competing manufacturers and suppliers. The defendants wanted to present evidence that would show their agreement was justified because the boycotted competitors used “pira[ted]” fashion designs. Id., at 467. But the Court wrote that “it was not error to refuse to hear the evidence offered” — evidence that the agreement was reasonable and necessary to “protect. . . against the devastating evils” of design pirating — for that evidence “is no more material than would be the reasonableness of the prices fixed” by a price-fixing agreement. Id., at 467-468.

In Klor’s the Court also applied the per se rule. The Court considered a boycott created when a retail store, Broadway-Hale, and 10 household appliance manufacturers and their distributors agreed that the distributors would not sell, or would sell only at discriminatory prices, household appliances to Broadway-Hale’s small, nearby competitor, namely, Klor’s. 359 U. S., at 208-209. The defendants had submitted undisputed evidence that their agreement hurt only one competitor (Klor’s) and that so many other nearby appliance-selling competitors remained that competition in the marketplace continued to thrive. Id., at 209-210. The Court held that this evidence was beside the point. The conspiracy was “not to be tolerated merely because the victim is just one merchant.” Id., at 213. The Court thereby inferred injury to the competitive process itself from the nature of the boycott agreement. And it forbade, as a matter of law, a defense based upon a claim that only one small firm, not competition itself, had suffered injury.

The case before us involves Klor’s. The Second Circuit did not forbid the defendants to introduce evidence of “justification.” To the contrary, it invited the defendants to do so, for it said that the “per se rule” would apply only if no “pro-competitive justification” were to be found. 93 E 3d, at 1061; cf. 7 P. Areeda & H. Hovenkamp, Antitrust Law f 1510, p. 416 (1986) (“Boycotts are said to be unlawful per se but justifications are routinely considered in defining the forbidden category”)- Thus, the specific legal question before us is whether an antitrust court considering an agreement by a buyer to purchase goods or services from one supplier rather than another should (after examining the buyer’s reasons or justifications) apply the per se rule if it finds no legitimate business reason for that purchasing decision. We conclude no boycott-related per se rule applies and that the plaintiff here must allege and prove harm, not just to a single competitor, but to the competitive process, i. e., to competition itself.

Our conclusion rests in large part upon precedent, for precedent limits the per se rule in the boycott context to cases involving horizontal agreements among direct competitors. The agreement in Fashion Originators’ Guild involved what may be called a group boycott in the strongest sense: A group of competitors threatened to withhold business from third parties unless those third parties would help them injure their directly competing rivals. Although Klor’s involved a threat made by a single powerful firm, it also involved a horizontal agreement among those threatened, namely, the appliance suppliers, to hurt a competitor of the retailer who made the threat. See 359 U. S., at 208-209; see also P. Areeda & L. Kaplow, Antitrust Analysis: Problems, Text, and Cases 333 (5th ed. 1997) (defining paradigmatic boycott as “collective action among a group of competitors that may inhibit the competitive vitality of rivals”); 11H. Hovenkamp, Antitrust Law ¶ 1901e, pp. 189-190 (1998). This Court emphasized in Klor’s that the agreement at issue was

“not a ease of a single trader refusing to deal with, another, nor even of a manufacturer and a dealer agreeing to an exclusive distributorship. Alleged in this complaint is a wide combination consisting of manufacturers, distributors and a retailer.” 859 U. S., at 212-213 (footnote omitted).

This Court subsequently pointed out specifically that Klor’s was a ease involving not simply a “vertical” agreement between supplier and customer, but a case that also involved a “horizontal” agreement among competitors. See Business Electronics, 485 U. S., at 734. And in doing so, the Court held that a “vertical restraint is not illegal per se unless it includes some agreement on price or price levels.” Id., at 735-736. This precedent makes the per se rule inapplicable, for the case before us concerns only a vertical agreement and a vertical restraint, a restraint that takes the form of depriving a supplier of a potential customer. See 11 Hovenkamp, supra, ¶ 1902d, at 198.

We have not found any special feature of this case that could distinguish it from the precedent we have just discussed. We concede Diseon’s claim that the petitioners’ behavior hurt consumers by raising telephone service rates. But that consumer injury naturally flowed not so much from a less competitive market for removal services, as from the exercise of market power that is lawfully in the hands of a monopolist, namely, New York Telephone, combined with a deception worked upon the regulatory agency that prevented the agency from controlling New York Telephone’s exercise of its monopoly power.

To apply the per se rule here — where the buyer’s decision, though not made for competitive reasons, composes part of a regulatory fraud — would transform eases involving business behavior that is improper for various reasons, say, cases involving nepotism or personal pique, into treble-damages antitrust eases. And that per se rule would discourage firms from changing suppliers — even where the competitive process itself does not suffer harm. Cf. Poller v. Columbia Broadcasting System, Inc., 368 U. S. 464, 484 (1962) (Harlan, J., dissenting) (citing Packard Motor Car Co. v. Webster Motor Car Co., 243 F. 2d 418, 421 (CADC 1957)).

The freedom to switch suppliers lies close to the heart of the competitive process that the antitrust laws seek to encourage. Cf. Standard Oil, 221 U. S., at 62 (noting “the freedom of the individual right to contract when not unduly or improperly exercised [is] the most efficient means for the prevention of monopoly”). At the same time, other laws, for example, “unfair competition” laws, business tort laws, or regulatory laws, provide remedies for various “competitive practices thought to be offensive to proper standards of business morality.” 3 P. Areeda & H. Hovenkamp, Antitrust Law ¶ 651d, p. 78 (1996). Thus, this Court has refused to apply per se reasoning in cases involving that kind of activity. See Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U. S. 209, 225 (1993) (“Even an act of pure malice by one business competitor against another does not, without more, state a claim under the federal antitrust laws”); 3 Areeda & Hovenkamp, supra, ¶ 651d, at 80 (“[I]n the presence of substantial market power, some kinds of tortious behavior could anticompetitively create or sustain a monopoly, [but] it is wrong categorically to condemn such practices ... or categorically to excuse them”).

Discon points to another special feature of its complaint, namely, its claim that Materiel Enterprises hoped to drive Discon from the market lest Diseon reveal its behavior to New York Telephone or to the relevant regulatory agency. That hope, says Discon, amounts to a special anticompeti-tive motive.

We do not see how the presence of this special motive, however, could make a significant difference. That motive does not turn Materiel Enterprises’ actions into a “boycott” within the meaning of this Court’s precedents. See supra, at 135-136. Nor, for that matter, do we understand how Diseon believes the motive affected Materiel Enterprises’ behavior. Why would Discon’s demise have made Diseon’s employees less likely, rather than more likely, to report the overcharge/rebate scheme to telephone regulators? Regardless, a per se rule that would turn upon a showing that a defendant not only knew about but also hoped for a firm’s demise would create a legal distinction — between corporate knowledge and corporate motive — that does not necessarily correspond to behavioral differences and which would be difficult to prove, making the resolution of already complex antitrust cases yet more difficult. We cannot find a convincing reason why the presence of this special motive should lead to the application of the per se rule.

Finally, we shall consider an argument that is related tangentially to Discon’s per se claims. The complaint alleges that New York Telephone (through Materiel Enterprises) was the largest buyer of removal services in New York State, see Amended Complaint ¶¶2, 29, 99, App. 75, 83, 110, and that only AT&T Technologies competed for New York Telephone’s business, see ¶¶2, 26, 29, id., at 75, 82-83. One might ask whether these accompanying allegations are sufficient to warrant application of a Klor’s-type presumption of consequent harm to the competitive process itself.

We believe that these allegations do not do so, for, as we have said, see supra, at 135-136, antitrust law does not permit the application of the per se rule in the boycott context in the absence of a horizontal agreement, though in other contexts, say, vertical price fixing, conduct may fall within the scope of a per se rule not at issue here, see, e. g., Dr. Miles Medical Co., 220 U. S., at 408. The complaint itself explains why any such presumption would be particularly inappropriate here, for it suggests the presence of other potential or actual competitors, which fact, in the circumstances, could argue against the likelihood of anti-competitive harm. The complaint says, for example, that New York Telephone itself was a potential competitor in that New York Telephone considered removing its equipment by itself, and in fact did perform a few jobs itself. See ¶27, App. 83. The complaint also suggests that other nearby small local telephone companies needing removal services must have worked out some way to supply them. See ¶ 53, id., at 91. The complaint’s description of the removal business suggests that entry was easy, perhaps to the point where other firms, employing workers who knew how to remove a switch and sell it for scrap, might have entered that business almost at will. Cf. ¶ 27, id., at 83. To that extent, the complaint suggests other actual or potential competitors might have provided roughly similar checks upon “equipment removal” prices and services with or without Diseon. At the least, the complaint provides no sound basis for assuming the contrary. Its simple allegation of harm to Discon does not automatically show injury to competition.

1 — 4 h-i í — l

The Court of Appeals also upheld the complaint’s charge of a conspiracy to monopolize in violation of §2 of the Sherman Act. It did so, however, on the understanding that the conspiracy in question consisted of the very same purchasing practices that we have previously discussed. Unless those agreements harmed the competitive process, they did not amount to a conspiracy to monopolize. We do not see, on the basis of the facts alleged, how Discon could succeed on this claim without prevailing on its §1 claim. See 3 Areeda & Hovenkamp, supra, ¶ 651e, at 81-82. Given our conclusion that Discon has not alleged a § 1 per se violation, we think it prudent to vacate this portion of the Court of Appeals’ decision and allow the court to reconsider its finding of a §2 claim.

IV

Petitioners ask us to reach beyond the “per se” issues and to hold that Discon’s complaint does not allege anywhere that their purchasing decisions harmed the competitive process itself and, for this reason, it should be dismissed. They note that Discon has not pointed to any paragraph of the complaint that alleges harm to the competitive process. This matter, however, lies outside the questions presented for certiorari. Those questions were limited to the application of the per se rule. For that reason, we believe petitioners cannot raise that argument in this Court.

V

For these reasons, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.


source: Caselaw Access Project

author: Per Curiam. Justice Stevens,

license: Public Domain

text:
    CALDERON, WARDEN v. COLEMAN
    No. 98-437.
    Decided December 14, 1998
   Per Curiam.

After a jury trial in a state court in California, respondent Russell Coleman was convicted of the September 5, 1979, rape, sodomy, and murder of Shirley Hill. The jury’s two special circumstances findings of rape and sodomy made Coleman death-penalty eligible under California law. See People v. Coleman, 46 Cal. 3d 749, 756-757, 759 P. 2d 1260, 1264 (1988).

At the penalty phase of Coleman’s trial, the trial judge gave the jury a so-called Briggs instruction, then required by California law, which informed the jury of the Governor’s power to commute a sentence of life without possibility of parole to some lesser sentence that might include the possibility of parole. After giving the standard Briggs instruction, the state trial court instructed the jury that it was not to consider the Governor’s commutation power in reaching its verdict. Thus, the full jury instruction on commutation was as follows:

“You are instructed that under the State Constitution, a Governor is empowered to grant a reprieve, pardon or commutation of a sentence following conviction of the crime.
“Under this power, a Governor may in the future commute or modify a sentence of life imprisonment without the possibility of parole to a lesser sentence that would include the possibility of parole.
“So that you will have no misunderstandings relating to a sentence of life without possibility of parole, you have been informed generally as to the Governor’s commutation modification power. You are now instructed, however, that the matter of a Governor’s commutation power is not to be considered by you in determining the punishment for this defendant.
“You may not speculate as to if or when a Governor would commute the sentence to a lesser one which includes the possibility of parole.
“I instruct you again that you are to consider only those aggravating and mitigating factors which I have already read to you in determining which punishment shall be imposed on this defendant.” Respondent’s Opposition to Motion to Amend Petition for Writ of Habeas Corpus in No. C89-1906 (ND Cal.), p. 7, Record, Doe. No. 267, quoting Tr. 1059-1060.

In an unrelated case, we had upheld the Briggs instruction against a federal constitutional challenge. California v. Ramos, 463 U. S. 992 (1983). On direct appeal, however, Coleman argued that giving the Briggs instruction in his case was reversible error under the California Supreme Court’s decision in California v. Ramos, 37 Cal. 3d 136, 689 P. 2d 430 (1984). There the California Supreme Court held, on remand from this Court, that the Briggs instruction violates the California Constitution because, in the California Supreme Court’s view, it is misleading, invites the jury to consider irrelevant and speculative matters, and diverts the jury from its proper function.

The California Supreme Court rejected Coleman’s argument and upheld his death sentence. People v. Coleman, supra. While the court found that the giving of the Briggs instruction was error under California law, it held the error was not prejudicial because the additional instruction told the jury it should not consider the possibility of commutation in, determining Coleman’s sentence. Id., at 780-781, 759 P. 2d, at 1281-1282.

Coleman then sought a federal writ of habeas corpus. Although the District Court acknowledged this Court’s holding that giving the Briggs instruction does not violate the Federal Constitution and does not mislead or inappropriately divert the jury, the court nonetheless granted the writ as to Coleman’s death sentence. No. C89-1906 (ND Cal., Mar. 28, 1997), App. to Pet. for Cert. A-146, A-151. Relying on recent Ninth Circuit precedent, the District Court found the Briggs instruction was inaccurate as applied to Coleman because it did not mention a limitation on the Governor’s power to commute Coleman’s sentence. Id., at A-147. Under the California Constitution, the Governor may not commute the sentence of a prisoner who, like Coleman, is a twice-convicted felon without the approval of four judges of the California Supreme Court. Art. 5, §8.

The District Court found that, because the Briggs instruction did not mention this limitation on the Governor’s commutation power, it violated the Eighth and Fourteenth Amendments by “g[iving] the jury inaccurate information and potentially diverting] its attention from the mitigation evidence presented.” No. C89-1906, supra, at A-151. The court also found that, in the context of the case — particularly, the prosecutor’s arguments of future dangerousness, “the commutation instruction would likely have prevented the jury from giving due effect to Coleman’s mitigating evidence.” Id., at A-149. The court did not in express terms consider the effect of the additional instruction, which instructed the jury not to consider commutation, but it noted that the Ninth Circuit had held in a similar case, Hamilton v. Vasquez, 17 F. 3d 1149 (1994), “that the trial court did not cure the error by instructing the jury not to consider commutation.” No. C89-1906, supra, at A-148.

The Court of Appeals for the Ninth Circuit affirmed the District Court’s grant of the writ as to Coleman’s sentence. 150 F. 3d 1105 (1998). The Court of Appeals agreed with the District Court’s finding that the instruction, as applied to Coleman, gave the jury inaccurate information about the Governor’s commutation power. Id., at 1118. And, in a sweeping pronouncement, the court declared, “[a] commutation instruction is imconstitutional when it is inaccurate.” Ibid. The instruction at issue was fatally flawed, the court held, because it “dramatically overstate^] the possibility of commuting the life sentence of a person such as Coleman” (by creating “the false impression that the Governor, acting alone,” could commute the sentence) and thus prevented the jurors from “understand[ing] the choice they [we]re asked to make” and “ Invited [them] to speculate’ that Coleman could be effectively isolated from the community only through a sentence of death.” Id., at 1119.

Having concluded that the giving of the instruction was constitutional error, the Court of Appeals then took up the State’s argument that, even if the instruction was unconstitutional, it “did not have a ‘substantial and injurious effect or influence’ on the jury’s sentence of death,” ibid., as required by Brecht v. Abrahamson, 507 U. S. 619, 637 (1993). The court explained:

“To decide this question, we look to Boyde v. California, 494 U. S. 370 (1990). Wien the inaccuracy undermines the jury’s understanding of sentencing options, ‘there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.’ Boyde, 494 U. S. at 380.
“We conclude the district court did not err in holding that Coleman was denied due process by the state trial court’s inaccurate commutation instruction.” 150 F. 3d, at 1119 (citations omitted).

Though the Court of Appeals’ constitutional analysis of the jury instruction, and the Circuit precedent on which it relied, have not been approved by this Court, we do not consider the validity of that analysis here because the State has not asked us to do so. We will simply assume at this stage that the instruction did not meet constitutional standards. The State does contend, however, that the Court of Appeals erred by failing to apply the harmless-error analysis of Brecht. We agree.

We held in Brecht that a federal court may grant habeas relief based on trial error only when that error “ ‘had substantial and injurious effect or influence in determining the jury’s verdict.’” 507 U. S., at 637 (quoting Kotteakos v. United States, 328 U. S. 750, 776 (1946)). This standard reflects the “presumption of finality and legality” that attaches to a conviction at the conclusion of direct review. 507 U. S., at 633. It protects the State’s sovereign interest in punishing offenders and its "good-faith attempts to honor constitutional rights,” id., at 635, while ensuring that the extraordinary remedy of habeas corpus is available to those i<£whom society has grievously wronged,’ ” id., at 634 (quoting Fay v. Noia, 372 U. S. 391, 440-441 (1963)).

A federal court upsets this careful balance when it sets aside a state-court conviction or sentence without first determining that the error had a substantial and injurious effect on the jury’s verdict. The social costs of retrial or resen-tencing are significant, and the attendant difficulties are acute in cases such as this one, where the original sentencing hearing took place in November 1981, some 17 years ago. No. C89-1906, App. to Pet. for Cert. A-101, n. 45. The State is not to be put to this arduous task based on mere speculation that the defendant was prejudiced by trial error; the court must find that the defendant was actually prejudiced by the error. Brecht, supra, at 637. As a consequence, once the Court of Appeals determined that the giving of the Briggs instruction was constitutional error, it was bound to apply the harmless-error analysis mandated by Brecht.

The Boyde test that the Court of Appeals applied instead is not a harmless-error test at all. It is, rather, the test for determining, in the first instance, whether constitutional error occurred when the jury was given an ambiguous instruction that it might have interpreted to prevent consideration of constitutionally relevant evidence. Boyde v. California, 494 U. S. 370, 377, 380 (1990). In such cases, constitutional error exists only if “there is a reasonable likelihood” that the jury so interpreted the instruction.

Although the Boyde test for constitutional error, like the Brecht harmless-error test, furthers the “strong policy against retrials years after the first trial where the claimed error amounts to no more than speculation,” 494 U. S., at 380, it is not a substitute for the Brecht harmless-error test. The Boyde analysis does not inquire into the actual effect of the error on the jury’s verdict; it merely asks whether constitutional error has occurred. If the Court of Appeals had viewed the jury instruction as ambiguous on the issue whether the Governor had the power alone to commute defendant’s sentence, it might have inquired — as in Boyde— whether there was a reasonable likelihood that the jury understood the instruction as stating the Governor had that power. If the court found that possibility to be a reasonable one, it would determine then whether the instruction, so understood, was unconstitutional as applied to the defendant. Even if the court found a constitutional violation, however, it could not grant the writ without further inquiry. As the Court has recognized on numerous occasions, some constitutional errors do not entitle the defendant to relief, particularly habeas relief. See, e. g., Brecht, supra, at 637-638; O'Neal v. McAninch, 513 U.S. 432, 435-436 (1995) (applying harmless-error review to an instruction that “violated the Federal Constitution by misleading the jury”). The court must find that the error, in the whole context of the particular ease, had a substantial and injurious effect or influence on the jury’s verdict.

The motion of respondent for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted, the judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Stevens,

with whom Justice Souter, Justice Ginsburg, and Justice Breyer join,

dissenting.

Busy appellate judges sometimes write imperfect opinions. The failure adequately to explain the resolution of one issue in an opinion that answers several questions is not a matter of serious consequence if the decision is correct. In this ease, there might have been a slight flaw in the Court of Appeals’ brief explanation of why the invalid instruction given to the jury was not harmless, but, as I shall explain, the court’s ruling was unquestionably correct.

The State does not challenge the conclusion that the jury was given an unconstitutional instruction. It merely argues that this trial error should not “command automatic reversal. . . without application of the harmless error test of Brecht v. Abrahamson, 507 U. S. 619 (1993).” And respondent Coleman does not contend that Brecht is inapplicable. He merely argues that the Court of Appeals actually performed the Brecht inquiry albeit in an expedited fashion. Thus, the only controversy before this Court is whether the Court of Appeals was faithful to Brecht, and sufficiently explicit in its adherence.

Three aspects of the Brecht test for harmless error are significant here: (1) The test requires the reviewing judge to evaluate the error in the context of the entire record; (2) it asks whether the constitutional trial error at issue had a “ ‘substantial and injurious effect or influence in determining the jury’s verdict,’ ” Brecht, 507 U. S., at 637 (quoting Kotteakos v. United States, 328 U. S. 750, 776 (1946)); and (3) if the judge has grave doubt about whether the error was harmless, the uncertain judge should conclude that the error affected the jury’s deliberations and grant relief, see O’Neal v. McAninch, 513 U. S. 432 (1995).

In this ease, it is undisputed that both the District Court and the Court of Appeals made a thorough examination of the entire record. The District Court’s 117-page opinion carefully analyzed each of the respondent’s nonfrivolous attacks on his conviction and concluded that the judgment of guilt should stand. With respect to the death penalty, however, the District Judge decided that the inaccurate and misleading instruction describing the Governor’s commutation power was unconstitutional and “would likely have prevented the jury from giving due effect to Coleman’s mitigating evidence.” Although the judge did not use the exact words that this Court used in its opinions in Kotteakos, Brecht, and O’Neal, it is perfectly clear that he was convinced that the instruction had a “substantial and injurious effect” on the jury’s deliberations. This conclusion is reinforced by the statement of a juror explaining how the invalid instruction had, in fact, affected the jury’s deliberations.

Because there is no reason to believe that the District Court’s evaluation of the impact of the invalid instruction was incorrect, it is not surprising that the Court of Appeals affirmed without writing extensively about the harmless-error issue. It reasoned, in brief, that if there was a reasonable likelihood that the jury had applied an invalid instruction in a way that prevented the consideration of constitutionally relevant evidence, the error necessarily satisfied the Brecht test. Instead of spelling out its reasoning at length, it merely cited an earlier en banc decision of the Ninth Circuit that came to a similar conclusion. See McDowell v. Calderon, 130 F. 3d 833, 838 (1997), cert. denied, 523 U. S. 1103 (1998).

Perhaps there may be cases in which a more detailed and written analysis of the harmless-error issue should precede an appellate court’s decision to affirm a trial court’s conclusion that an unconstitutional jury instruction in a capital sentencing proceeding was not harmless. But even if that be true, there are three good reasons for not requiring the Court of Appeals to take a second look at the issue in this case.

First, in the context of the entire record as analyzed by the District Court, the result here is correct. Second, a fair reading of The CHIEF Justice’s opinion for the Court in Boyde v. California, 494 U. S. 370 (1990), indicates that the heightened “reasonable likelihood” standard endorsed in that case was intended to determine whether an instructional error “require[s] reversal.” Id., at 379, 380. There is little reason to question the soundness — at least in most applications — of the reasoning of the en bane opinion in McDowell on which the Court of Appeals relied in this ease. Third, there is a strong interest in bringing all litigation, and especially capital cases, to a prompt conclusion. This Court’s ill-conceived summary disposition will needlessly prolong this proceeding.

Whatever the shortcomings of the Court of Appeals’ review, they surely are not so great as to warrant an expenditure of this Court’s time and resources. This is especially so because our decision today is unlikely to change the result below. Ordinarily, we demand far more indication that a lower court has departed from settled law, or has reached an issue of some national significance, before we grant review. The purported error in this ease does not satisfy that standard.

Accordingly, I would deny the petition for writ of certio-rari and, therefore, respectfully dissent.

       Pet. for Cert. i.

       App. to Pet. for Cert. 149. The District Court concluded more fully: “Coleman was entitled, under the Eighth and Fourteenth Amendments, to a sentencing jury that could fairly review the evidence he presented to show that he should not be sentenced to death. See e. g., Boyde [v. California, 494 U. S. 370, 377-378 (1990)]; Lockett [v. Ohio, 438 U. S. 586, 605 (1978)]. Considered in light of the prosecution argument, the aggravating evidence and the record as a whole, the commutation instruction would likely have prevented the jury from giving due effect to Coleman’s mitigating evidence. See Hamilton [v. Vasquez, 17 F. 3d 1149, 1163 (CA9), cert. denied, 512 U. S. 1220 (1994)]; cf. Boyde, 494 U. S. at 370.
      “Believing that the governor could, single-handedly, render Coleman eligible for parole, for example, the jury would have found it difficult to give ‘a reasoned moral response’ to testimony about Coleman’s temper and his history of incarceration that was introduced to explain his behavior. See Hamilton, 17 F. 3d at 1160. During its deliberation, the jury requested a copy of Coleman’s prior felony convictions, which [suggests] that it gave them considerable weight. RT 1068-72. Yet the instruction prevented the jury from learning that Coleman’s prior convictions not only weighed against him in aggravation but also made parole considerably less likely. See [California v. Ramos, 463 U. S. 992, 1008 (1983)] (penalty-phase jury may consider many factors in determining whether death is the appropriate punishment); see also Penry [v. Lynaugh, 492 U. S. 302, 324 (1989)] (penalty-phase instruction unconstitutionally allowed jury to give aggravating, but not mitigating, effect to evidence of petitioner’s mental retardation).
      “The need for accurate parole-related instructions is heightened when the prosecution argues the issue of a defendant’s future dangerousness. See Simmons [v. South Carolina, 512 U. S. 154, 164 (1994)] (due process violated when trial court refused to give accurate parole-eligibility instruction to rebut prosecution’s argument about future dangerousness). Here, the prosecutor built his penalty-phase case around Coleman’s prior felonies and his propensity for violence, both in and out of prison. His closing argument, in particular, told the jury that Coleman 'has already demonstrated what he is capable of doing on numerous occasions to each and every one of us-He is manipulative, he is dangerous to all of us.’ RT 1011-12,1029-30; see Simmons, [512 U. S., at 157] (prosecutor alluded to future dangerousness by arguing that death sentence would be ‘a response of society to someone who is a threat]’]); Hamilton, 17 F. 3d at 1162 (prosecutor argued that [Hamilton] would be ‘conniving and devising ways to manipulate the system and get out[’]). This argument may have caused the jury to speculate about the possibility that Coleman would be released if he were not sentenced to death.
      “Because the instruction, in the context of Coleman’s penalty-phase proceeding, gave the jury inaccurate information and potentially diverted its attention from the mitigation evidence presented, his death sentence violates the Eighth and Fourteenth Amendments: ‘The jury in this case deliberating under these instructions could not have made the constitutionally mandated reasoned and informed choice between a sentence of life imprisonment without possibility of parole and a sentence of death.’ See Hamilton, 17 F. 3d at 1164.” Id., at 149-151 (footnote omitted).

      “[A]ecording to juror Verda New, the possibility of parole was a much discussed topic in deciding whether respondent should live or die:
      ‘[The jurors] openly discussed that Russell Coleman would be released from prison unless we sentenced him to death. Several jurors stated that he could be paroled if we sentenced him to life in prison.... Many of the jurors expressed their fear that if we failed to sentence Mr. Coleman to death, the courts or the Governor could allow him to be released from prison. This was the most significant part of our discussions regarding the appropriate penalty.’ ” Brief in Opposition 7.

       Although this Court’s per curiam opinion quotes the relevant paragraph from the opinion below, see ante, at 145, the Court inadvertently omits the citation to McDowell that explained the Court of Appeals’ reasoning. In McDowell, the en banc court stated:
      “The question, then, is whether this fundamental error had any ‘substantial and injurious effect or influence’ on the jury’s sentence of death, Brecht v. Abrahamson, 507 U. S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U. S. 750, 776 (1946)). To answer this question, we look for specific guidance to Boyde v. California, 494 U. S. 370 (1990). In Boyde, the Supreme Court confronted a claim that an arguably ambiguous jury instruction ‘restrietEed] impermissibly a jury’s consideration of relevant [penalty phase] evidence, . . .’ To evaluate such a claim, the Court fashioned a reviewing yardstick which we find appropriate here: ‘The proper inquiry in such a case is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents consideration of constitutionally relevant evidence.’ Id. at 380. If the answer is “yes,’ the error necessarily satisfies the Brecht test for substantial and injurious error.... We conclude on these facts, in these circumstances, and in the light of controlling authority that the error did substantially injure and influence the jury’s verdict.” McDowell v. Calderon, 130 F. 3d, at 838 (footnote omitted).
      Four judges dissented from McDowell’s condusion that it was reasonably likely that the jury erred in their application of an instruction used in that case, see id., at 841, but no judge took issue with the logic of the harmless-error analysis quoted above, see id., at 842-843 (Thompson, J., dissenting); see also id., at 843-845 (Kozinski, J., dissenting).


text:
    IN RE KENNEDY
    No. 98-6945.
    Decided January 11, 1999
   Per Curiam.

Pro se petitioner Kennedy seeks leave to proceed informa pauperis under Rule 39 of this Court. We deny this request pursuant to Rule 39.8. Kennedy is allowed until February 1, 1999, within which to pay the docketing fee required by Rule 38 and to submit his petition in compliance with this Court’s Rule 33.1. We also direct the Clerk of the Gourt not to accept any further petitions for certiorari nor petitions for extraordinary writs from Kennedy in noncriminal matters unless he pays the docketing fee required by Rule 38 and submits his petition in compliance with Rule 33.1.

Kennedy has abused this Court’s certiorari and extraordinary writ processes. In October 1998, we invoked Rule 39.8 to deny Kennedy informa pauperis status. See In re Kennedy, post, p. 807. At that time, Kennedy had filed four petitions for extraordinary writs and six petitions for certio-rari, all of which were both patently frivolous and had been denied without recorded dissent. The instant petition for an extraordinary writ thus constitutes Kennedy’s 12th frivolous filing with this Court.

We enter the order barring prospective filings for the reasons discussed in Martin v. District of Columbia Court of Appeals, 506 U. S. 1 (1992) (per curiam). Kennedy’s abuse of the writ of certiorari and of the extraordinary writ has been in noncriminal eases, and so we limit our sanction accordingly. The order therefore will not prevent Kennedy from petitioning to challenge criminal sanctions which might be imposed on him. The order, however, will allow this Court to devote its limited resources to the claims of petitioners who have not abused our process.

It is so ordered.

Justice Stevens,

dissenting.

For reasons previously stated, see Martin v. District of Columbia Court of Appeals, 506 U. S. 1, 4 (1992) (Stevens, J., dissenting), and eases cited, I respectfully dissent.


author:
Justice Ginsburg
      Justice Stevens,

text:
    EL AL ISRAEL AIRLINES, LTD. v. TSUI YUAN TSENG
    No. 97-475.
    Argued November 10,1998
    Decided January 12, 1999

      Diane Westwood Wilson argued the cause for petitioner. With her on the briefs was Judith R. Nemsick.

      Jonathan E. Nuechterlein argued the cause for the United States as amicus curiae urging reversal. With him on the briefs were Solicitor General Waxman, Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, Alisa B. Klein, David R. Andrews, David S. Newman, Nancy E. McFadden, Paul M. Geier, and Dale C. Andrews.

      Robert H. Silk argued the cause and filed briefs for respondent.

      Briefs of amici curiae urging reversal were filed for the Air Transport Association of America by 'Warren L. Dean, Jr., and Joseph 0. Click; and for the International Air Transport Association by Bert W. Rein.

   Justice Ginsburg

delivered the opinion of the Court.

Plaintiff-respondent Tsui Yuan Tseng was subjected to an intrusive security search at John P. Kennedy International Airport in New York before she boarded an El A1 Israel Airlines May 22, 1993 flight to Tel Aviv. Tseng seeks tort damages from El A1 for this occurrence. The episode-in-suit, both parties now submit, does not qualify as an “accident” within the meaning of the treaty popularly known as the Warsaw Convention, which governs air carrier liability for “all international transportation.” Tseng alleges psychic or psychosomatic injuries, but no “bodily injury,” as that term is used in the Convention. Her case presents a question of the Convention’s exclusivity: When the Convention allows no recovery for the episode-in-suit, does it correspondingly preclude the passenger from maintaining an action for damages under another source of law, in this case, New York tort law?

The exclusivity question before us has been settled prospectively in a Warsaw Convention protocol (Montreal Protocol No. 4) recently ratified by the Senate. In accord with the protocol, Tseng concedes, a passenger whose injury is not compensable under the Convention (because it entails no “bodily injury” or was not the result of an “accident”) will have no recourse to an alternate remedy. We conclude that the protocol, to which the United States has now subscribed, clarifies, but does not change, the Convention’s exclusivity domain. We therefore hold that recovery for a personal injury suffered “on board [an] aircraft or in the course of any of the operations of embarking or disembarking,” Art. 17, 49 Stat. 3018, if not allowed under the Convention, is not available at all.

The Court of Appeals for the Second Circuit ruled otherwise. In that court’s view, a plaintiff who did not qualify for relief under the Convention could seek relief under local law for an injury sustained in the course of international air travel. 122 F. 3d 99 (1997). We granted certiorari, 523 U. S. 1117 (1998), and now reverse the Second Circuit’s judgment. Recourse to local law, we are persuaded, would undermine the uniform regulation of international air carrier liability that the Warsaw Convention was designed to foster.

rH

We have twice reserved decision on the Convention’s exclusivity. In Air France v. Saks, 470 U. S. 392 (1985), we concluded that a passenger’s injury was not caused by an “accident” for which the airline could be held accountable under the Convention, but expressed no view whether that passenger could maintain “a state cause of action for negligence.” Id., at 408. In Eastern Airlines, Inc. v. Floyd, 499 U. S. 530 (1991), we held that mental or psychic injuries unaccompanied by physical injuries are not compensable under Article 17 of the Convention, but declined to reach the question whether the Convention “provides the exclusive cause of action for injuries sustained during international air transportation.” Id., at 558. We resolve in this case the question on which we earlier reserved judgment. the

At the outset, we highlight key provisions of the treaty we are interpreting. Chapter I of the Warsaw Convention, entitled “Scope — DEFINITIONS,” declares in Article 1(1) that the “[Cjonvention shall apply to all international transportation of persons, baggage, or goods performed by aircraft for hire.” 49 Stat. 3014. Chapter III, entitled “Liability op the Carrier,” defines in Articles 17, 18, and 19 the three kinds of liability for which the Convention provides. Article 17 establishes the conditions of liability for personal injury to passengers:

“The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.” 49 Stat. 3018.

Article 18 establishes the conditions of liability for damage to baggage or goods. Id., at 3019. Article 19 establishes the conditions of liability for damage caused by delay. Ibid. Article 24, referring back to Articles 17,18, and 19, instructs:

eases covered by articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this convention.
“(2) In the eases covered by article 17 the provisions of the preceding paragraph shall also apply, without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights.” Id., at 3020.

i

With the key treaty provisions as the backdrop, we next describe the episode-in-suit. On May 22, 1993, Tsui Yuan Tseng arrived at John F. Kennedy International Airport (hereinafter JFK) to board an El A1 Israel Airlines flight to Tel Aviv. In conformity with standard El A1 preboarding procedures, a security guard questioned Tseng about her destination and travel plans. The guard considered Tseng’s responses “illogical,” and ranked her as a “high risk” passenger. Tseng was taken to a private security room where her baggage and person were searched for explosives and detonating devices. She was told to remove her shoes, jacket, and sweater, and to lower her blue jeans to mid-hip. A female security guard then searched Tseng’s body outside her clothes by hand and with an electronic security wand.

After the search, which lasted 15 minutes, El A1 personnel decided that Tseng did not pose a security threat and allowed her to board the flight. Tseng later testified that she “was really sick and very upset” during the flight, that she was “emotionally traumatized and disturbed” during her month-long trip in Israel, and that, upon her return, she underwent medical and psychiatric treatment for the lingering effects of the body search. 122 F. 3d 99, 101 (CA2 1997) (internal quotation marks omitted).

Tseng filed suit against El A1 in 1994 in a New York state court of first instance. Her complaint alleged a state-law personal injury claim based on the May 22, 1993 episode at JFK. Tseng’s pleading charged, inter alia, assault and false imprisonment, but alleged no bodily injury. El A1 removed the case to federal court.

The District Court, after a bench trial, dismissed Tseng’s personal injury claim. See 919 F. Supp. 155 (SDNY 1996). That claim, the court concluded, was governed by Article 17 of the Warsaw Convention, which creates a cause of action for personal injuries suffered as a result of an “accident... in the course of any of the operations of embarking or disembarking,” 49 Stat. 3018. See 919 F. Supp., at 157-158. Tseng’s claim was not compensable under Article 17, the District Court stated, because Tseng “sustained no bodily injury” as a result of the search, id., at 158, and the Convention does not permit “recovery for psychic or psychosomatic injury unaccompanied by bodily injury,” ibid, (citing Floyd, 499 U. S., at 552). The District Court further concluded that Tseng could not pursue her claim, alternately, under New York tort law; as that court read the Convention, Article 24 shields the carrier from liability for personal injuries not compensable under Article 17. See 919 F. Supp., at 158.

The Court of Appeals reversed in relevant part. See 122 F. 3d 99 (CA2 1997). The Second Circuit concluded first that no “accident” within Article 17’s compass had occurred; in the Court of Appeals’ view, the Convention drafters did not “ai[m) to impose close to absolute liability” for an individual’s “personal reaction” to “routine operating procedures,” measures that, although “ineonvenien[t] and embarass[ing],” are the “price passengers pay for ... airline safety.” Id., at 103-104. In some tension with that reasoning, the Second Circuit next concluded that the Convention does not shield the very same “routine operating procedures” from assessment under the diverse laws of signatory nations (and, in the ease of the United States, States within one Nation) governing assault and false imprisonment. See id., at 104.

Article 24 of the Convention, the Court of Appeals said, “clearly states that resort to local law is precluded only where the incident is ‘covered’ by Article 17, meaning where there has been an accident, either on the plane or in the course of embarking or disembarking, which led to death, wounding or other bodily injury.” Id., at 104-105. The court found support in the drafting history of the Convention, which it construed to “indicate that national law was intended to provide the passenger’s remedy where the Convention did not expressly apply.” Id., at 105. The Second Circuit also rejected the argument that allowance of state-law claims when the Convention does not permit recovery would contravene the treaty’s goal of uniformity. The court read our decision in Zicherman v. Korean Air Lines Co., 516 U. S. 217 (1996), to “instruct specifically that the Convention expresses no compelling interest in uniformity that would warrant . . . supplanting an otherwise applicable body of law.” 122 F. 3d, at 107.

Ill

We accept it as given that El Al’s search of Tseng was not an “accident” within the meaning of Article 17, for the parties do not place that Court of Appeals conclusion at issue. See supra, at 165 and this page, n. 9. We also accept, again only for purposes of this decision, that El Al’s actions did not constitute “wilful misconduct”; accordingly, we confront no issue under Article 25 of the Convention, see supra, at 163, n. 7. The parties do not dispute that the episode-in-suit occurred in international transportation in the course of embarking.

Our inquiry begins with the text of Article 24, which prescribes the exclusivity of the Convention’s provisions for air carrier liability. “[I]t is our responsibility to give the specific words of the treaty a meaning consistent with the shared expectations of the contracting parties.” Saks, 470 U. S., at 399. “Because a treaty ratified by the United States is not only the law of this land, see U. S. Const., Art. II, §2, but also an agreement among sovereign powers, we have traditionally considered as aids to its interpretation the negotiating and drafting history (travaux préparatoires) and the postratification understanding of the contracting parties.” Zicherman, 516 U. S., at 226.

Article 24 provides that “eases covered by article 17” — or in the governing French text, “les cas prévus á (’article 17” — may “only be brought subject to the conditions and limits set out in th[e] [Convention.” 49 Stat. 3020. That prescription is not a model of the clear drafter’s art. We recognize that the words lend themselves to divergent interpretation.

In Tseng’s view, and in the view of the Court of Appeals, “les cas prévus á l’article 17” means those cases in which a passenger could actually maintain a claim for relief under Article 17. So read, Article 24 would permit any passenger whose personal injury suit did not satisfy the liability conditions of Article 17 to pursue the claim under local law.

In El Al’s view, on the other hand, and in the view of the United States as amicus curiae, “les cas prévus á l’article 17” refers generically to all personal injury eases stemming from occurrences on board an aircraft or in embarking or disembarking, and simply distinguishes that class of cases (Article 17 cases) from cases involving damaged luggage or goods, or delay (which Articles 18 and 19 address). So read, Article 24 would preclude a passenger from asserting any air transit personal injury claims under local law, including claims that failed to satisfy Article 17’s liability conditions, notably, because the injury did not result from an “accident,” see Saks, 470 U. S., at 405, or because the “accident” did not result in physical injury or physical manifestation of injury, see Floyd, 499 U. S., at 552.

Respect is ordinarily due the reasonable views of the Executive Branch concerning the meaning of an international treaty. See Sumitomo Shoji America, Inc. v. Avagliano, 457 U. S. 176, 184-185 (1982) (“Although not conclusive, the meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcement is entitled to great weight.”). We conclude that the Government’s construction of Article 24 is most faithful to the Convention’s text, purpose, and overall structure.

A

The cardinal purpose of the Warsaw Convention, we have observed, is to “achiev[e] uniformity of rules governing claims arising from international air transportation.” Floyd, 499 U. S., at 552; see Zicherman, 516 U. S., at 230. The Convention signatories, in the treaty’s preamble, specifically "recognized the advantage of regulating in a uniform manner the conditions of... the liability of the carrier.” 49 Stat. 3014. To provide the desired uniformity, Chapter III of the Convention sets out an array of liability rules which, the treaty declares, "apply to all international transportation of persons, baggage, or goods performed by aircraft.” Ibid. In that Chapter, the Convention describes and defines the three areas of air carrier liability (personal injuries in Article 17, baggage or goods loss, destruction, or damage in Article 18, and damage occasioned by delay in Article 19), the conditions exempting air carriers from liability (Article 20), the monetary limits of liability (Article 22), and the circumstances in which air carriers may not limit liability (Articles 23 and 25). See supra, at 162-163, and n. 7. Given the Convention’s comprehensive scheme of liability rules and its textual emphasis on uniformity, we would be hard put to conclude that the delegates at Warsaw meant to subject air carriers to the distinct, nonuniform liability rules of the individual signatory nations.

The Court of Appeals looked to our precedent for guidance on this point, but it mispereeived our meaning. It misread our decision in Zicherman to say that the Warsaw Convention expresses no compelling interest in uniformity that would warrant preempting an otherwise applicable body of law, here New York tort law. See 122 F. 3d, at 107; supra, at 166. Zicherman acknowledges that the Convention een-trally endeavors “to foster uniformity in the law of international air travel.” 516 U. S., at 230. It further recognizes that the Convention addresses the question whether there is airline liability vel non. See id., at 231. The Zicherman case itself involved auxiliary issues: who may seek recovery in lieu of passengers, and for what harms they may be compensated. See id., at 221,227. Looking to the Convention’s text, negotiating and drafting history, contracting states’ postratification understanding of the Convention, and scholarly commentary, the Court in Zicherman determined that Warsaw drafters intended to resolve whether there is liability, but to leave to domestic law (the local law identified by the forum under its choice-of-law rules or approaches) determination of the compensatory damages available to the suitor. See id., at 231.

A complementary purpose of the Convention is to accommodate or balance the interests of passengers seeking recovery for personal injuries, and the interests of air carriers seeking to limit potential liability. Before the Warsaw accord, injured passengers could file suits for damages, subject only to the limitations of the forum’s laws, including the forum’s choice-of-law regime. This exposure inhibited the growth of the then-fledgling international airline industry. See Floyd, 499 U. S., at 546; Lowenfeld & Mendelsohn, The United States and the Warsaw Convention, 80 Harv. L. Rev. 497, 499-500 (1967). Many international air carriers at that time endeavored to require passengers, as a condition of air travel, to relieve or reduce the carrier’s liability in case of injury. See Second International Conference on Private Aeronautical Law, October 4-12, 1929, Warsaw, Minutes 47 (R. Horner & D. Legrez transís. 1975) (hereinafter Minutes). The Convention drafters designed Articles 17, 22, and 24 of the Convention as a compromise between the interests of air carriers and their customers worldwide. In Article 17 of the Convention, carriers are denied the contractual prerogative to exclude or limit their liability for personal injury. In Articles 22 and 24, passengers are limited in the amount of damages they may recover, and are restricted in the claims they may pursue by the conditions and limits set out in the Convention.

Construing the Convention, as did the Court of Appeals, to allow passengers to pursue claims under local law when the Convention does not permit recovery could produce several anomalies. Carriers might be exposed to unlimited liability under diverse legal regimes, but would be prevented, under the treaty, from contracting out of such liability. Passengers injured physically in an emergency landing might be subject to the liability caps of the Convention, while those merely traumatized in the same mishap would be free to sue outside of the Convention for potentially unlimited damages. The Court of Appeals’ construction of the Convention would encourage artful pleading by plaintiffs seeking to opt out of the Convention’s liability scheme when local law promised recovery in excess of that prescribed by the treaty. See Potter v. Delta Air Lines, Inc., 98 F. 3d 881, 886 (CA5 1996). Such a reading would scarcely advance the predictability that adherence to the treaty has achieved worldwide.

The Second Circuit feared that if Article 17 were read to exclude relief outside the Convention for Tseng, then a passenger injured by a malfunctioning escalator in the airline’s terminal would have no recourse against the airline, even if the airline recklessly disregarded its duty to keep the escalator in proper repair. See 122 F. 3d, at 107. As the United States pointed out in its amicus curiae submission, however, the Convention addresses and concerns, only and exclusively, the airline’s liability for passenger injuries occurring “on board the aircraft or in the course of any of the operations of embarking or disembarking.” Art. 17, 49 Stat. 3018; see Brief for United States as Amicus Curiae 16. “[T]he Convention’s preemptive effect on local law extends no further than the Convention’s own substantive scope.” Ibid. A carrier, therefore, “is indisputably subject to liability under local law for injuries arising outside of that scope: e. g., for passenger injuries occurring before ‘any of the operations of embarking’” or disembarking. Ibid, (quoting Article 17).

Tseng raises a different concern. She argues that air carriers will escape liability for their intentional torts if passengers are not permitted to pursue personal injury claims outside of the terms of the Convention. See Brief for Respondent 15-16. But we have already cautioned that the definition of “accident” under Article 17 is an “unusual event . . . external to the passenger,” and that “[tjhis definition should be flexibly applied.” Saks, 470 U. S., at 405 (emphasis added). In Saks, the Court concluded that no “accident” occurred because the injury there — a hearing loss — “indisputably resulted] from the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft.” Id., at 406 (emphasis added). As we earlier noted, see supra, at 165-166, n. 9, Tseng and El A1 chose not to pursue in this Court the question whether an “accident” occurred, for an affirmative answer would still leave Tseng unable to recover under the treaty; she sustained no “bodily injury” and could not gain compensation under Article 17 for her solely psychic or psychosomatic injuries.

B

The drafting history of Article 17 is consistent with our understanding of the preemptive effect of the Convention. The preliminary draft of the Convention submitted to the conference at Warsaw made air carriers liable “in the ease of death, wounding, or any other bodily injury suffered by a traveler.” Minutes 264; see Saks, 470 U. S., at 401. In the later draft that prescribed what is now Article 17, airline liability was narrowed to encompass only bodily injury caused by an “accident.” See Minutes 205. It is improbable that, at the same time the drafters narrowed the conditions of air carrier liability in Article 17, they intended, in Article 24, to permit passengers to skirt those conditions by pursuing claims under local law.

Inspecting the drafting history, the Court of Appeals stressed a proposal made by the Czechoslovak delegation to state in the treaty that, in the absence of a stipulation in the Convention itself, “'the provisions of laws and national rules relative to carriage in each [signatory] State shall apply.’” 122 F. 3d, at 105 (quoting Minutes 176). That proposal was withdrawn upon amendment of the Convention’s title to read: “Convention For The Unification Of Certain Rules Relating To International Transportation By Air.” 49 Stat. 3014 (emphasis added); see 122 F. 3d, at 105. The Second Circuit saw in this history an indication “that national law was intended to provide the passenger’s remedy where the Convention did not expressly apply.” 122 F. 3d, at 105.

The British House of Lords, in Sidhu v. British Airways plc, [1997] 1 All E. R. 193, considered the same history, but found it inconclusive. Inclusion of the word “certain” in the Convention’s title, the Lords reasoned, accurately indicated that “the [Convention is concerned with certain rules only, not with all the rules relating to international carriage by air.” Id., at 204. For example, the Convention does not say “anything . . . about the carrier’s obligations of insurance, and in particular about compulsory insurance against third party risks.” Ibid. The Convention, in other words, is “a partial harmonisation, directed to the particular issues with which it deals,” ibid., among them, a carrier’s liability to passengers for personal injury. As to those issues, the Lords concluded, “the aim of the [Cjonvention is to unify.” Ibid. Pointing to the overall understanding that the Convention’s objective was to “ensure uniformity,” id., at 209, the Lords suggested that the Czechoslovak delegation may have meant only to underscore that national law controlled “chapters of law relating to international carriage by air with which the [Cjonvention was not attempting to deal.” Ibid. In light of the Lords’ exposition, we are satisfied that the withdrawn Czechoslovak proposal will hot bear the weight the Court of Appeals placed on it.

C

Montreal Protocol No. 4, ratified by the Senate on September 28, 1998, amends Article 24 to read, in relevant part: “In the carriage of passengers and baggage, any action for damages, however founded, can only be brought subject to the conditions and limits set out in this Convention ....” Both parties agree that, under the amended Article 24, the Convention’s preemptive effect is clear: The treaty precludes passengers from bringing actions under local law when they cannot establish air carrier liability under the treaty. Revised Article 24, El A1 urges and we agree, merely clarifies, it does not alter, the Convention’s rule of exclusivity.

Supporting the position that revised Article 24 provides for preemption not earlier established, Tseng urges that federal preemption of state law is disfavored generally, and particularly when matters of health and safety are at stake. See Brief for Respondent 31-33. See also post, at 181 (Stevens, J., dissenting) (“[A] treaty, like an Act of Congress, should not be construed to preempt state law unless its intent to do so is clear.”). Tseng overlooks in this regard that the nation-state, not subdivisions within one nation, is the focus of the Convention and the perspective of our treaty partners. Our home-centered preemption analysis, therefore, should not be applied, mechanically, in construing our international obligations.

Decisions of the courts of other Convention signatories corroborate our understanding of the Convention’s preemptive effect. In Sidhu, the British House of Lords considered and decided the very question we now face concerning the Convention’s exclusivity when a passenger alleges psychological damages, but no physical injury, resulting from an occurrence that is not an “accident” under Article 17. See 1 All E. R., at 201, 207. Reviewing the text, structure, and drafting history of the Convention, the Lords concluded that the Convention was designed to “ensure that, in all questions relating to the carrier’s liability, it is the provisions of the [Convention which apply and that the passenger does not have access to any other remedies, whether under the common law or otherwise, which may be available within the particular country where he chooses to raise his action.” Ibid. Courts of other nations bound by the Convention have also recognized the treaty’s encompassing preemptive ef-feet. The "opinions of our sister signatories,” we have observed, are “entitled to considerable weight.” Saks, 470 U. S., at 404 (internal quotation marks omitted). The text, drafting history, and underlying purpose of the Convention, in sum, counsel us to adhere to a view of the treaty’s exclusivity shared by our treaty partners.

* * *

For the reasons stated, we hold that the Warsaw Convention precludes a passenger from maintaining an action for personal injury damages under local law when her claim does not satisfy the conditions for liability under the Convention. Accordingly, we reverse the judgment of the Second Circuit.

It is so ordered.

Justice Stevens,

dissenting.

My disagreement with, the Court’s holding today has limited practical significance, not just because the issue has been conclusively determined for future cases by the recent amendment to the Warsaw Convention, see ante, at 160,174-175, but also because it affects only a narrow category of past cases. The decision is nevertheless significant because, in the end, it rests on the novel premise that preemption analysis should be applied differently to treaties than to other kinds of federal law, see ante, at 175. Because I disagree with that premise, I shall briefly explain why I believe the Court has erred.

I agree with the Court that the drafters of the Convention intended that the treaty largely supplant local law. Article 24 preempts local law in three major categories: (1) personal injury claims arising out of an accident; (2) claims for lost or damaged baggage; and (3) damage occasioned by transportation delays. Those categories surely comprise the bulk of potential disputes between international air carriers and their passengers.

The Convention, however, does not preempt local law in cases arising out of “wilful misconduct.” Article 25 expressly provides that a carrier shall not be entitled to avail itself of the provisions of the Convention that “exclude or limit” its liability if its misconduct is willful. Moreover, the question whether the carrier's wrongful act “is considered to be equivalent to wilful misconduct” is determined by “the law of the court to which the case is submitted.” Ibid. Accordingly, the vast majority of the potential elaims by passengers against international air carriers are either preempted by Article 24 or unequivocally governed by local law under Article 25.

Putting these cases aside, we are left with a narrow sliver of incidents involving personal injury that arise neither from an accident nor willful misconduct. Although the drafters of the treaty may not have realized that any such cases might arise, our construction of the term “accident” in Air France v. Saks, 470 U. S. 392, 405 (1985), had the effect of either recognizing or creating this narrow band of cases. Frankly, I am not persuaded that this case belongs in this interstitial niche because I believe it should have been resolved by determining that petitioner's alleged misconduct was either an accident within the meaning of Article 17, or involved willfulness as a matter of local law. Be that as it may, the parties have insisted that we decide the case on the assumption that it belongs in the sliver about which the treaty is silent.

This ease and Saks therefore differ from each of the eases that the Court has cited in footnote 16 of its opinion to emphasize the importance of respecting “the treaty’s encompassing preemptive effect,” as none of those cases involved personal injury resulting from a nonaceident. Ante, at 175-176. Given the unique character of this and the few other cases in the sliver, it is clear to me that the central purposes of the Convention will not be affected, whether we treat them like accident cases, which preempt local law, or like willful cases, which do not.

The overriding interest in achieving “ ^uniformity of rules governing claims arising from international air transportation,’ ” ante, at 169, will be accommodated in the situations explicitly covered by Article 24, regardless of how the Court decides this ease. In those circumstances, the Convention’s basic tradeoff between the carriers’ interest in avoiding unlimited liability and the passengers’ interest in obtaining compensation without proving fault will be fully achieved.

On the other hand, the interest in uniformity is disregarded in the category of eases that involve willful misconduct. Under the treaty, a reckless act or omission may constitute willful misconduct. See Koirala v. Thai Airways Int'l, Ltd., 126 F. 3d 1205, 1209-1210 (CA9 1997); Goldhirsch, supra, n. 1, at 121 (stating that most civil law jurisdictions have found that gross negligence satisfies Article 25). This bi’oad definition increases the number of cases not preempted by the Convention. In these circumstances, the delegates at Warsaw did decide "to subject air carriers to the distinct, nonuniform liability rules of the individual signatory nations.” Ante, at 169.

Thus, the interest in uniformity would not be significantly impaired if the number of cases not preempted, like those involving willful misconduct, was slightly enlarged to encompass those relatively rare cases in which the injury resulted from neither an accident nor a willful wrong. That the interest in uniformity is accommodated in one category of cases but not the other simply raises, without resolving, the question whether the drafters of the treaty intended to treat personal injury nonaecident cases as though they involved accidents. A plaintiff in such a case, unlike those injured by an accident, receives no benefit from the treaty, and normally should not have a claim that is valid under local law preempted, unless the treaty expressly requires that result.

Everyone agrees that the literal text of the treaty does not preempt claims of personal injury that do not arise out of an accident. It is equally clear that nothing in the drafting history requires that result. On the contrary, the amendment to the title of the Convention made in response to the proposal advanced by the Czechoslovak delegation, see ante, at 173, suggests that the parties assumed that local law would apply to all nonaccident cases. I agree with the Court that that inference is not strong enough, in itself, to require that the ambiguity be resolved in the plaintiff’s favor. It suffices for me, however, that the history is just as ambiguous as the text. I firmly believe that a treaty, like an Act of Congress, should not be construed to preempt state law unless its intent to do so is clear. See Medtronic, Inc. v. Lohr, 518 U. S. 470, 485 (1996); Department of Revenue of Ore. v. ACF Industries, Inc., 510 U. S. 332, 351 (1994); CSX Transp., Inc. v. Easterwood, 507 U. S. 658, 664 (1993); Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947). For this reason, I respectfully dissent.

       Convention for the Unification of Certain Rules tional Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, 3014, T. S. No. 876 (1934), note following 49 U. S. C. §40105.

       Montreal Protocol No. 4 to of Certain Rules Relating to International Carriage By Air, signed at Warsaw on October 12, 1929, as amended by the Protocol Done at the Hague on September 8, 1955 (hereinafter- Montreal Protocol No. 4), reprinted in S. Exec. Rep. No. 105-20, pp. 21-32 (1998).

       Federal Courts of Appeals have divided on the treaty interpretation question at issue. See Krys v. Lufthansa German Airlines, 119 F. 3d 1515, 1518, n. 8 (CA11 1997) (recognizing the split). In accord with the Second Circuit, the Third Gircuit has held that the Warsaw Convention does not preclude passengers, unable to recover for personal injuries under the terms of the Convention, from maintaining actions against air carriers under local law. See Abramson v. Japan Airlines Co., 739 F. 2d 130, 134 (1984), cert. denied, 470 U. S. 1059 (1985). In contrast, the Fifth Circuit has held that the Convention creates the exclusive cause of action against international air carriers for personal injuries arising from international air travel. See Potter v. Delta Air Lines, Inc., 98 F. 3d 881, 885 (1996).

       Citations in this opinion are to the official English translation of the Convention. See 49 Stat. 3014-3023. Where relevant, we set out, in addition, the Convention’s governing French text. See 49 Stat. 3000-3009; Air France v. Saks, 470 U. S. 392, 397 (1985).

       Article 18 provides, in relevant part:
      "(1) The destruction or loss of, or of damage to, any checked baggage or any goods, if the occurrence which caused the damage so sustained took place during the transportation by air.” 49 Stat. 3019.

       Article 19 provides:
      “The carrier shall be liable for damage occasioned by delay in the transportation by air of passengers, baggage, or goods.” Ibid. 7

       Chapter III of the Convention sets forth a number of other rules governing air carrier liability. Among these, Article 20 relieves a carrier of liability if it has “taken ali necessary measures to avoid the damage.” Ibid. Article 22 sets monetary limits on a carrier’s liability for harm to passengers and baggage. See ibid. Article 23 invalidates “[a]ny [contract] provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in th[e] [Convention.” Id., at 8020. Article 25(1) renders the Convention’s limits on liability inapplicable if the damage is caused by a carrier’s “wilful misconduct.” Ibid.

       The Court of Appeals affirmed, without discussion, the District Court’s judgment in favor of Tseng on her claim, under the Warsaw Convention, for damage to her baggage. See 122 F. 3d, at 108. We denied El AL's petition for certiorari regarding that issue. See 528 U. S. 1117 (1998). 9

       An “accident” under Article 17 is “an unexpected or unusual event or happening that is external to the passenger.” Safes, 470 U. S., at 405. That definition, we have cautioned, should “be flexibly applied after assessment of all the circumstances surrounding a passenger’s injuries.” Ibid.

      The District Court, “[u]sing the flexible application prescribed by the Supreme Court,” concluded that El ATs search of Tseng was an “accident”: “[A] routine search, applied erroneously to plaintiff in the course of embarking on the aircraft, is fairly accurately characterized as an accident.” 919 F. Supp. 155, 158 (SDNY 1996).
      The Court of Appeals disagreed. That court described security searches as “routine” in international air travel, part of a terrorism-prevention effort that is “widely recognized and encouraged in the law,” and “the price passengers pay for the degree of airline safety so far afforded them.” 122 F. 3d, at 103. The court observed that passengers reasonably should be aware of “routine operating procedures” of the kind El A1 conducts daily. Ibid. The risk of mistakes, i. e., that innocent persons will be erroneously searched, is “[i]nherent in any effort to detect malefactors,” the court explained. Ibid. Tseng thus encountered “ordinary events and procedures of air transportation,” the court concluded, and not “an unexpected or unusual event.” Id., at 104.
      It is questionable whether the Court of Appeals “flexibly applied” the definition of “accident” we set forth in Saks. Both parties, however, now accept the Court of Appeals’ disposition of that issue. In any event, even if El Al’s search of Tseng was an “accident,” the core question of the Convention’s exclusivity would remain. The Convention provides for compensation under Article 17 only when the passenger suffers “death, physical injury, or physical manifestation of injury,” Eastern Airlines,

        Inc. v. Floyd, 499 U. S. 530, 552 (1991), a condition that both the District Court and the Court of Appeals determined Tseng did not meet, see 919 F. Supp., at 158; 122 F. 3d, at 104. The question whether the Convention precludes an action under local law when a passenger’s claim fails to satisfy Article 17’s conditions for liability does not turn on which of those conditions the claim fails to satisfy.

       In the lower courts, Tseng urged that Article 25 took her case outside the Convention's limits on liability. Article 25, now altered by Montreal Protocol No. 4, concerned damage caused by “wilful misconduct.” 49 Stat. 3020. On that matter, the District Court found “no evidence and no basis for inferring that [the selection of Tseng to be searched] was anything more than a mistake. Even if such a mistake can be characterized as misconduct,” the District Court added, “there is no basis for inferring that it was wilful.” 919 F. Supp., at 158. The Court of Appeals left the District Court’s finding on the absence of “wilful misconduct” undisturbed. See 122 F. 3d, at 104. Tseng’s brief in opposition to certiorari did not cite Article 25. We agree with the United States, as amicus curiae, that Tseng has not preserved any argument putting Article 25 at issue in this Court. See Brief for United States as Amicus Curiae 18, n. 10. 11

       The french text of Article 24 reads:
      “(1) Dans les cas prévus aux articles 18 et 19 toute action en responsabi-lité, á quelque titre que ce soit, ne peut étre exercée que dans les conditions et limites prévues par la présente Convention.
      “(2) Dans les cas prévus a l’artide 17, s’appliquent également les dispositions de l’alinéa précédent, sans prejudice de la détermination des per-sonnes qui ont le droit d’agir et de leurs droits respeetifs.” 49 Stat. 3006.
      Literally translated, “les cas prévus á l’article 17” means “the cases anticipated by Article 17,” see The New Cassell’s French Dictionary 132, 592 (D. Girard ed. 1973), or “the cases provided for by Article 17,” see The Oxford-Hachette French Dictionary 645 (M. Corréard & V. Grundy eds. 1994).

       The Court of Appeals recognized that the Convention aimed to “balance the interests of the passenger and the carrier,” but concluded that, with the “increasing strength of the airline industry, the balance has properly shifted away from protecting the carrier and toward protecting the passenger.” 122 F. 3d, at 107. Postratification adjustments, however, are appropriately made by the treaty’s signatories. See S. Exec. Rep. No. 105-20, at 5-6.

         Sir Alfred Dennis of Great Britain stated at the Warsaw Conference that Article 24 is “a very important stipulation which touches the very substance of the Convention, because [it] excludes recourse to common law.” Minutes 213.

       See 144 Cong. Ree. S11059 (Sept. 28,1998). The President signed the instrument of ratification for Montreal Protocol No. 4 on November 5, 1998. The Protocol will enter into force in the United States on March 4, 1999.

       Article 24, as amended by Montreal Protocol No. 4, provides:
      “1. In the carriage of passengers and baggage, any action for damages, however founded, can only be brought subject to the conditions and limits set out in this Convention, without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights.
      “2. In the carriage of cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and limits of liability set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. Such limits of liability constitute maximum limits and may not be exceeded whatever the circumstances which gave rise to the liability.” S. Exec. Rep. No. 105-20, at 29.

       See, e.g., Gal v. Northern Mountain Helicopters Inc., Dkt. No. 3491834918, 1998 B. C. T. C. Lexis 1351, *15-*16 (July 22,1998) (Hunter, J., in chambers) (reviewing claim for personal injuries sustained during helicopter crash, a judge of the Supreme Court of British Columbia concluded: “The Warsaw Convention remedy pursuant to Article 17 is exclusive .... [T]he plaintiff has no claim except for that permitted under the Warsaw Convention.”), Naval-Torres v. Northwest Airlines Inc., 159 D. L. R. (4th) 67, 73, 77 (1998) (Sharpe, J.) (considering claim of bodily injury from exposure, in flight, to second-hand smoke, a judge of the Ontario Court (General Division) rejected passenger’s contention that she “is entitled in law to pursue any common law or statutory claims which exist apart from any claims she may have under the Convention,” and concluded that “where a claim falls within the reach of the Convention, the Convention is exhaustive of the rights of the plaintiff”); Emery Air Freight Corp. v. Nerine Nurseries Ltd., [1997] 3 N. Z. L. R. 723, 735-736, 737 (concluding that action for damage to goods “must comply with the conditions and limits set out in the [C]onventio[n],” New Zealand Court of Appeal recalled the “general purpose of the [C]onventio[n]... to protect carriers operating across international boundaries from the vagaries of local laws and to impose a uniform regime upon them and upon those dealing with them”); Seagate Technology Int'l v. Changi Int’l Airport Servs. Pte Ltd., [1997] 3 S. L. R. 1, 9 (considering claim of lost goods, Singapore Court of Appeal noted: Articles 17,18, and 19 “form the sole foundation of the carrier’s liability in respect of loss or damage falling within the scope of those articles. In such eases, the party seeking satisfaction from the carrier need not and, in fact, cannot plead his ease in common law or otherwise.”).

       As we have already held, Article 17 only covers accidents, which we defined as “an unexpected or unusual event or happeningthatis external to the passenger.” Air France v. Saks, 470 U. S. 392, 405 (1985). Thus, I believe Article 24(2)’s reference to Article 17 does not include nonaceidents.
      As a leading treatise states with regard to Article 17: “If the passenger’s lawyer does not want the Convention’s limits to be applicable, he must either: a) prove the Convention does not apply because his client was not a passenger in international transportation as defined in Article 1; or b) if the Convention is applicable, that the limits are unavailable because the carrier failed to deliver a ticket as provided by Article 3; or c) the carrier was guilty of wilful misconduct (Article 25) or d) there was no ‘accident” L. Goldhirseh, The Warsaw Convention Annotated: A Legal Handbook 55 (1988) (emphasis added).

       Article 24 provides:
      “(1) In the cases covered by articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this convention.
      "(2) In the cases covered by article 17 the provisions of the preceding paragraph shall also apply, without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights.”

       Article 25 provides:
      "(1) The carrier shall not be entitled to avail himself of the provisions of this convention which exclude or limit his liability, if the damage is caused by his wilful misconduct or by such default on his part as, in accordance with the law of the court to which the case is submitted, is considered to be equivalent to wilful misconduct.
      “(2) Similarly the carrier shall not be entitled to avail himself of the said provisions, if the damage is caused under the same circumstances by any agent of the carrier acting within the scope of his employment.”

       Article 18 (damage to goods) and Article 19 (damage occasioned by delay) are not limited to accidents; any liability under local law for damages to goods or for delay is therefore explicitly preempted by Article 24(1). See Saks, 470 U. S., at 398.

       See Gal v. Northern Mountain Helicopters Inc., Dkt. No. 3491834918, 1998 B. C. T. C. Lexis 1351, *2-*3 (July 22, 1998) (involving a helicopter crash and noting “the plaintiff invoked the Warsaw Convention claiming for injuries and loss arising from the accident”); Naval-Torres v. Northwest Airlines Inc., 159 D. L. R. (4th) 67, 74, 76 (1998) (stating that injury resulting from second-hand smoke constitutes an accident and expressly noting but declining to resolve the preemption issue decided today by this Court); Emery Air Freight Corp. v. Nerine Nurseries Ltd., [1997] 3 N. Z. L. R. 723, 727, 728 (involving damage to cargo, therefore covered under Article 18, and thus explicitly preempted under Article 24(1)); Seagate Technology Int’l v. Changi Int'l Airport Servs. Pte Ltd., [1997] 3 S. L. R. 1, 2 (same).
      While the Court is correct in its assertion that the British House of Lords assumed the terrorist attack in Sidhu v. British Airways plc, [1997] 1 All E. R. 193, was not an accident, see ante, at 175,1 am puzzled why the Lords came to this conclusion. Courts both in this country and in our sister signatories have frequently found a hijacking to be an accident within the meaning of Article 17. See Saks, 470 U. S., at 405; Ayache v. Air-France, 38 Rev. franc. dr. aérien 450, 451 [1984] (T. G. I. Paris, 1st ch.) (France); Air-France v. Consorts Telchner, 39 Rev. franc. dr. aérien 232, 240 [1984] (S. Ct. Israel).

       The Convention does require such a result, for example, in the case of accidents resulting in no physical injury. I agree with the Court that, in that case, the victim’s remedies under local law are preempted by Article 24. See Eastern Airlines, Inc. v. Floyd, 499 U. S. 530, 552 (1991). My interpretation does not, therefore, produce the anomaly identified ante, at 171. Since I believe that all personal injuries (whether physical or psychological) arising from accidents are covered by Article 17 and therefore preempted by Article 24(2), the “merely traumatized” plaintiff would not be free to sue outside the Convention.