author: Justice O’Connor Chief Justice Burger,

text:
    MARRESE ET AL. v. AMERICAN ACADEMY OF ORTHOPAEDIC SURGEONS
    No. 83-1452.
    Argued December 4, 1984
    Decided March 4, 1985

      O’Connor, J., delivered the opinion of the Court, in which Brennan, White, Marshall, Powell, and Rehnquist, JJ., joined. Burger, C. J., filed an opinion concurring in the judgment, post, p. 387. Black-mun and Stevens, JJ., took no part in the consideration or decision of the case.

      Michael T. Sawyier argued the cause for petitioners. With him on the briefs were Stephen B. Cohen, George C. Pontikes, and John J. Casey, Jr.

      Charles W. Murdock, Deputy Attorney General of Illinois, argued the cause for the State of Illinois et al. as amici curiae urging reversal. With him on the brief were Neil F. Hartigan, Attorney General of Illinois, and Robert E. Davy, Thomas J. DeMay, and James N. O’Hara, Assistant Attorneys General, Linley E. Pearson, Attorney General of Indiana, and Frank A. Baldwin, Deputy Attorney General, Bronson C. La Follette, Attorney General of Wisconsin, and Michael L. Zaleski, Assistant Attorney General.

      D. Kendall Griffith argued the cause for respondent. With him on the brief were Thomas M. Crisham, Robert E. Nord, and Pamela S. Hollis.

   Justice O’Connor

delivered the opinion of the Court.

This case concerns the preclusive effect of a state court judgment in a subsequent lawsuit involving federal antitrust claims within the exclusive jurisdiction of the federal courts. The Court of Appeals for the Seventh Circuit, sitting en banc, held as a matter of federal law that the earlier state court judgments barred the federal antitrust suit. 726 F. 2d 1150 (1984). Under 28 U. S. C. § 1738, a federal court generally is required to consider first the law of the State in which the judgment was rendered to determine its preclusive effect. Because the lower courts did not consider state preclusion law in this case, we reverse and remand.

I — I

Petitioners are board-certified orthopaedic surgeons who applied for membership in respondent American Academy of Orthopaedic Surgeons (Academy). Respondent denied the membership applications without providing a hearing or a statement of reasons. In November 1976, petitioner Dr. Treister filed suit in the Circuit Court of Cook County, State of Illinois, alleging that the denial of membership in the Academy violated associational rights protected by Illinois common law. Petitioner Dr. Marrese separately filed a similar action in state court. Neither petitioner alleged a violation of state antitrust law in his state court action; nor did either petitioner contemporaneously file a federal antitrust suit. The Illinois Appellate Court ultimately held that Dr. Treister’s complaint failed to state a cause of action, Treister v. American Academy of Orthopaedic Surgeons, 78 Ill. App. 3d 746, 396 N. E. 2d 1225 (1979), and the Illinois Supreme Court denied leave to appeal. 79 Ill. 2d 630 (1980). After the Appellate Court ruled against Dr. Treister, the Circuit Court dismissed Dr. Marrese’s complaint.

In March 1980, petitioners filed a federal antitrust suit in the United States District Court for the Northern District of Illinois based on the same events underlying their unsuccessful state court actions. As amended, the complaint alleged that respondent Academy possesses monopoly power, that petitioners were denied membership in order to discourage competition, and that their exclusion constituted a boycott in violation of § 1 of the Sherman Act, 15 U. S. C. § 1. App. 8, 26-30, 33. Respondent filed a motion to dismiss arguing that claim preclusion barred the federal antitrust claim because the earlier state court actions concerned the same facts and were dismissed with prejudice. In denying this motion, the District Court reasoned that state courts lack jurisdiction over federal antitrust claims, and therefore a state court judgment cannot have claim preclusive effect in a subsequent federal antitrust suit. 496 F. Supp. 236, 238-239 (1980), on reconsideration, 524 F. Supp. 389 (1981). Discovery began and respondent refused to allow petitioners access to certain files relating to membership applications. After respondent persisted in this refusal despite a discovery order, the District Court held respondent in criminal contempt. App. to Pet. for Cert. N-l.

The judgment of contempt was reversed by a divided panel of the Court of Appeals in an opinion holding that the District Judge had abused his discretion by authorizing discovery of the membership files and also suggesting that the federal action was barred by claim preclusion and that the antitrust claims were groundless. 692 F. 2d 1083 (1982). This opinion was vacated by an en banc vote, and the original panel issued a narrower opinion that did not discuss claim pre-elusion. 706 F. 2d 1488 (1983). The Court of Appeals then vacated the second opinion and ordered rehearing en banc. In a divided vote, the Court of Appeals held that claim preclusion barred the federal antitrust suit and reversed the contempt order because the discovery order was invalid. 726 F. 2d 1150 (1984).

On the claim preclusion issue, no opinion commanded the votes of a majority of the Court of Appeals. A plurality opinion concluded that a state court judgment bars the subsequent filing of a federal antitrust claim if the plaintiff could have brought a state antitrust claim under a state statute “materially identical” to the Sherman Act. Id., at 1153. The plurality examined the Illinois Antitrust Act, Ill. Rev. Stat., ch. 38, ¶ 60-3(2) (1981), and found that it is sufficiently similar to the Sherman Act to bar petitioners’ federal antitrust claims in the instant case. Id., at 1155-1156. An opinion concurring in part concluded that res judicata required petitioners to bring their “entire cause of action within a reasonable period of time.” Id., at 1166 (Flaum, J.). To avoid preclusion of their federal antitrust claim, petitioners should have either filed concurrent state and federal actions or brought their state claims in federal court pendent to their Sherman Act claim. Ibid.

Five judges also concluded that the discovery order was invalid and therefore the contempt judgment should be reversed. A plurality opinion first observed that the discovery order was invalid because the District Court should have dismissed the suit on claim preclusion grounds before the discovery order was entered. Id., at 1158. Alternatively, the order constituted an abuse of discretion because it did not adequately prevent petitioners from misusing the discovery process. Id., at 1158-1162. Three judges joined the entire discussion concerning the discovery order. A fourth judge did not believe that claim preclusion applied, but he agreed that the discovery order constituted an abuse of discretion. Id., at 1162 (Eschbach, J., concurring in part and dissenting in part). Finally, the fifth judge observed that it was sufficient to hold that the complaint should have been dismissed on claim preclusion grounds; he added, however, that if he thought it necessary he would join the portion of the plurality opinion holding the discovery order invalid. Id., at 1162 (Bauer, J., concurring).

We granted certiorari limited to the question whether the Court of Appeals correctly held that claim preclusion requires dismissal of the federal antitrust action, 467 U. S. 1258 (1984), and we now reverse.

Before addressing the merits of the decision below, we first examine whether the Court of Appeals had jurisdiction to review the District Court’s denial of the motion to dismiss. Although the parties did not raise the jurisdictional issue before this Court, we address it to assure that the claim preclusion issue is properly before us. See, e. g., United States v. Storer Broadcasting Co., 351 U. S. 192, 197 (1956). In the present case, the District Court initially refused to certify its denial of the motion to dismiss for immediate appeal pursuant to 28 U. S. C. § 1292(b). The District Court subsequently held respondent in criminal contempt for refusing to comply with a discovery order. Respondent then appealed from the judgment of criminal contempt pursuant to 28 U. S. C. § 1291. See Bray v. United States, 423 U. S. 73 (1975) (per curiam). While the appeal from the contempt judgment was pending, the District Court amended the earlier denial of the motion to dismiss in order to certify it for immediate appeal. App. to Pet. for Cert. 1-1. The Court of Appeals authorized interlocutory appeal pursuant to § 1292(b), and ordered proceedings consolidated with the appeal from the contempt order. 726 F. 2d, at 1152; App. to Pet. for Cert. J-1.

Petitioners argued below that because the appeal from the contempt order was pending, the District Court lacked jurisdiction to amend its order denying the motion to dismiss to allow interlocutory appeal. In general, filing of a notice of appeal confers jurisdiction on the court of appeals and divests the district court of control over those aspects of the case involved in the appeal. Griggs v. Provident Consumer Discount Co., 459 U. S. 56, 58 (1982) (per curiam). This proposition, however, does not imply that an appeal from a judgment of criminal contempt based on noncompliance with a discovery order transfers jurisdiction over the entire case to the court of appeals. Criminal contempt judgments are immediately appealable pursuant to § 1291 because they result from “ ‘a separate and independent proceeding ... to vindicate the authority of the court’ ” and are “ ‘not a part of the original cause.’” Bray, supra, at 75, quoting Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 445, 451 (1911). Thus, prior to certification of the claim preclusion issue pursuant to § 1292(b), the contempt judgment was the only matter before the Court of Appeals. See 706 F. 2d, at 1497-1498; 692 F. 2d, at 1096. The District Court’s amendment of its initial denial of the motion to dismiss did not interfere with but instead facilitated review of the pending appeal from the contempt order. We agree with the Court of Appeals, 726 F. 2d, at 1152, that the pendency of the appeal from the contempt judgment did not prevent the District Court from certifying the denial of the motion to dismiss for immediate appeal under § 1292(b). Accordingly, the Court of Appeals properly exercised jurisdiction over the consolidated appeals, and we have jurisdiction to review that court’s decision with respect to dismissal of the antitrust claim.

HH HH

The issue presented by this case is whether a state court judgment may have preclusive effect on a federal antitrust claim that could not have been raised in the state proceeding. Although federal antitrust claims are within the exclusive jurisdiction of the federal courts, see, e. g., General Investment Co. v. Lake Shore & M. S. R. Co., 260 U. S. 261, 286-288 (1922), the Court of Appeals ruled that the dismissal of petitioners’ complaints in state court barred them from bringing a claim based on the same facts under the Sherman Act. The Court of Appeals erred by suggesting that in these circumstances a federal court should determine the preclusive effect of a state court judgment without regard to the law of the State in which judgment was rendered.

The preclusive effect of a state court judgment in a subsequent federal lawsuit generally is determined by the full faith and credit statute, which provides that state judicial proceedings “shall have the same full faith and credit in every court within the United States ... as they have by law or usage in the courts of such State . . . from which they are taken.” 28 U. S. C. § 1738. This statute directs a federal court to refer to the preclusion law of the State in which judgment was rendered. “It has long been established that § 1738 does not allow federal courts to employ their own rules of res judicata in determining the effect of state judgments. Rather, it goes beyond the common law and commands a federal court to accept the rules chosen by the State from which the judgment is taken.” Kremer v. Chemical Construction Corp., 456 U. S. 461, 481-482 (1982); see also Allen v. McCurry, 449 U. S. 90, 96 (1980). Section 1738 embodies concerns of comity and federalism that allow the States to determine, subject to the requirements of the statute and the Due Process Clause, the preclusive effect of judgments in their own courts. See Kremer, supra, at 478, 481-483. Cf. Riley v. New York Trust Co., 315 U. S. 343, 349 (1942) (discussing preclusive effect of state judgment in proceedings in another State).

The fact that petitioners’ antitrust claim is within the exclusive jurisdiction of the federal courts does not necessarily make § 1738 inapplicable to this case. Our decisions indicate that a state court judgment may in some circumstances have preclusive effect in a subsequent action within the exclusive jurisdiction of the federal courts. Without discussing § 1738, this Court has held that the issue preclusive effect of a state court judgment barred a subsequent patent suit that could not have been brought in state court. Becker v. Contoure Laboratories, Inc., 279 U. S. 388 (1929). Moreover, Kremer held that § 1738 applies to a claim of employment discrimination under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq., although the Court expressly declined to decide whether Title VII claims can be brought only in federal courts. 456 U. S., at 479, n. 20. Kremer implies that absent an exception to § 1738, state law determines at least the issue preclusive effect of a prior state judgment in a subsequent action involving a claim within the exclusive jurisdiction of the federal courts.

More generally, Kremer indicates that § 1738 requires a federal court to look first to state preclusion law in determining the preclusive effects of a state court judgment. Cf. Haring v. Prosise, 462 U. S. 306, 314, and n. 8 (198&); Smith, Full Faith and Credit and Section 1983: A Reappraisal, 63 N. C. L. Rev. 59, 110-111 (1984). The Court’s analysis in Kremer began with the finding that state law would in fact bar relitigation of the discrimination issue decided in the earlier state proceedings. 456 U. S., at 466-467. That finding implied that the plaintiff could not relitigate the same issue in federal court unless some exception to § 1738 applied. Ibid. Kremer observed that “an exception to § 1738 will not be recognized unless a later statute contains an express or implied repeal.” Id., at 468; see also Allen v. McCurry, supra, at 99. Title VII does not expressly repeal § 1738, and the Court concluded that the statutory provisions and legislative history do not support a finding of implied repeal. 456 U. S., at 476. We conclude that the basic approach adopted in Kremer applies in a lawsuit involving a claim within the exclusive jurisdiction of the federal courts.

To be sure, a state court will not have occasion to address the specific question whether a state judgment has issue or claim preclusive effect in a later action that can be brought only in federal court. Nevertheless, a federal court may rely in the first instance on state preclusion principles to determine the extent to which an earlier state judgment bars subsequent litigation. Cf. FDIC v. Eckhardt, 691 F. 2d 245, 247-248 (CA6 1982) (applying state law to determine preclu-sive effect on claim within concurrent jurisdiction of state and federal courts). Kremer illustrates that a federal court can apply state rules of issue preclusion to determine if a matter actually litigated in state court may be relitigated in a subsequent federal proceeding. See 456 U. S., at 467.

With respect to matters that were not decided in the state proceedings, we note that claim preclusion generally does not apply where “[t]he plaintiff was unable to rely on a certain theory of the case or to seek a certain remedy because of the limitations on the subject matter jurisdiction of the courts . . . .” Restatement (Second) of Judgments §26(l)(c) (1982). If state preclusion law includes this requirement of prior jurisdictional competency, which is generally true, a state judgment will not have claim preclusive effect on a cause of action within the exclusive jurisdiction of the federal courts. Even in the event that a party asserting the affirmative defense of claim preclusion can show that state preclusion rules in some circumstances bar a claim outside the jurisdiction of the court that rendered the initial judgment, the federal court should first consider whether application of the state rules would bar the particular federal claim.

Reference to state preclusion law may make it unnecessary to determine if the federal court, as an exception to § 1738, should refuse to give preclusive effect to a state court judgment. The issue whether there is an exception to §1738 arises only if state law indicates that litigation of a particular claim or issue should be barred in the subsequent federal pro-j ceeding. To the extent that state preclusion law indicates' that a judgment normally does not have claim preclusive effect as to matters that the court lacked jurisdiction to entertain, lower courts and commentators have correctly concluded that a state court judgment does not bar a subsequent federal antitrust claim. See 726 F. 2d, at 1174 (Cudahy, J., dissenting) (citing cases); 692 F. 2d, at 1099 (Stewart, J., dissenting); Restatement, supra, §25(1), Comment e; id., §26(1)(c), Illustration 2; 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4470, pp. 687-688 (1981). Unless application of Illinois preclusion law suggests, contrary to the usual view, that petitioners’ federal antitrust claim is somehow barred, there will be no need to decide in this case if there is an exception to § 1738.

The Court of Appeals did not apply the approach to § 1738 that we have outlined. Both the plurality opinion, see 726 F. 2d, at 1154, and an opinion concurring in part, see id., at 1163-1164 (Flaum, J.), express the view that § 1738 allows a federal court to give a state court judgment greater preclusive effect than the state courts themselves would give to it. This proposition, however, was rejected by Migra v. Warren City School Dist. Bd. of Ed., 465 U. S. 75 (1984), a case decided shortly after the Court of Appeals announced its decision in the instant case. In Migra, a discharged schoolteacher filed suit under 42 U. S. C. § 1983 in federal court after she prevailed in state court on a contract claim involving the same underlying events. The Federal District Court dismissed the § 1983 action as barred by claim preclusion. The opinion of this Court emphasized that under § 1738, state law determined the preclusive effect of the state judgment. Id., at 81. Because it was unclear from the record whether the District Court’s ruling was based on state preclusion law, we remanded for clarification on this point. Id., at 87. Such a remand obviously would have been unnecessary were a federal court free to give greater preclusive effect to a state court judgment than would the judgment-rendering State. See id., at 88 (White, J., concurring).

; We are unwilling to create a special exception to § 1738 for federal antitrust claims that would give state court judg-ements greater preclusive effect than would the courts of the State rendering the judgment. Cf. Haring v. Prosise, 462 U. S., at 317-318 (refusing to create special preclusion rule for § 1983 claim subsequent to plaintiff’s guilty plea). The plurality opinion for the Court of Appeals relied on Federated Department Stores, Inc. v. Moitie, 452 U. S. 394 (1981), to observe that the doctrine of claim preclusion protects defendants from repetitive lawsuits based on the same conduct, 726 F. 2d, at 1152, and that there is a practical need to require plaintiffs “to litigate their claims in an economical and parsimonious fashion.” Id., at 1153. We agree that these are valid and important concerns, and we note that under § 1738 state issue preclusion law may promote the goals of repose and conservation of judicial resources by preventing the relitigation of certain issues in a subsequent federal proceeding. See Kremer, 456 U. S., at 485 (state judgment barred subsequent Title VII action in federal court).

If we had a single system of courts and our only concerns were efficiency and finality, it might be desirable to fashion claim preclusion rules that would require a plaintiff to bring suit initially in the forum of most general jurisdiction, thereby resolving as many issues as possible in one proceeding. See Restatement (Second) of Judgments §24, Comment g (1982); C. Wright, A. Miller, & E. Cooper, supra, § 4407, p. 51; id. § 4412, p. 93. The decision of the Court of Appeals approximates such a rule inasmuch as it encourages plaintiffs to file suit initially in federal district court and to attempt to bring any state law claims pendent to their federal antitrust claims. Whether this result would reduce the overall burden of litigation is debatable, see 726 F. 2d, at 1181-1182 (Cudahy, J., dissenting); C. Wright, A. Miller, & E. Cooper, supra, §4407, p. 51-52, and we decline to base our interpretation of § 1738 on our opinion on this question.

More importantly, we have parallel systems of state and federal courts, and the concerns of comity reflected in § 1738.. / generally allow States to determine the preclusive scope / of their own courts’ judgments. See Kremer, supra, at/ 481-482; Allen v. McCurry, 449 U. S., at 96; cf. Currie, Reg Judicata: The Neglected Defense, 45 U. Chi. L. Rev. 317, 327 (1978) (state policies may seek to limit preclusive effect of state court judgment). These concerns certainly are not made less compelling because state courts lack jurisdiction over federal antitrust claims. We therefore reject a judicially created exception to § 1738 that effectively holds as a matter of federal law that a plaintiff can bring state law claims initially in state court only at the cost of forgoing subsequent federal antitrust claims. Federated Department Stores, Inc. v. Moitie does not suggest a contrary conclusion. That case did not involve § 1738; rather it held that “accepted principles of res judicata” determine the preclusive effect of a federal court judgment. See 452 U. S., at 401.

In this case the Court of Appeals should have first referred to Illinois law to determine the preclusive effect of the state judgment. Only if state law indicates that a particular claim or issue would be barred, is it necessary to determine if an exception to § 1738 should apply. Although for purposes of this case, we need not decide if such an exception exists for federal antitrust claims, we observe that the more general question is whether the concerns underlying a particular grant of exclusive jurisdiction justify a finding of an implied partial repeal of § 1738. Resolution of this question will depend on the particular federal statute as well as the nature of the claim or issue involved in the subsequent federal action. Our previous decisions indicate that the primary consideration must be the intent of Congress. See Kremer, supra, at 470-476 (finding no congressional intent to depart from § 1738 for purposes of Title VII); cf. Brown v. Felsen, 442 U. S. 127, 138 (1979) (finding congressional intent that state judgments would not have claim preclusive effect on dischargeability issue in bankruptcy).

IV

The decisions below did not consider Illinois preclusion law in their discussion of the claim preclusion issue. The District Court relied on federal law to conclude that the state judgments did not bar the claims under the Sherman Act. See 496 F. Supp., at 238-239. Similarly, the plurality opinion of the Court of Apneals did not discuss Illinois principles of claim preclusion. See 726 F. 2d, at 1164. Although an opinion concurring in part also concluded that petitioners’ antitrust claim was barred as a matter of federal law, it did suggest that this conclusion was consistent with Illinois law. See id., at 1164 (Flaum, J.). A dissenting opinion vigorously argued that principles of Illinois claim preclusion law did not require dismissal of the federal antitrust claims. See id., at 1176-1177 (Cudahy, J.). Before this Court, the parties have continued to disagree about the content of Illinois preclusion law. We believe that this dispute is best resolved in the first instance by the District Court. Cf. Migra v. Warren City School Dist. Bd. of Ed., 465 U. S., at 87.

Petitioners also urge us to reverse the decision of the Court of Appeals with respect to the contempt order. We specifically declined to grant certiorari on questions related to the discovery order or the subsequent contempt order, and we do not address those issues here.

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Blackmun and Justice Stevens took no part in the consideration or decision of this case.

Chief Justice Burger,

concurring in the judgment.

I agree with the Court’s implicit conclusion that the Court of Appeals approached 28 U. S. C. § 1738 too narrowly and technically by holding it irrelevant on the ground that Illinois law does not address the preclusive effect of a state court judgment on a federal antitrust suit, see 726 F. 2d 1150, 1154 (1984). In the circumstances presented by this case, a fair reading of § 1738 requires federal courts to look first to general principles of state preclusion law. Those principles control if they clearly establish that the state court judgment does not bar the later federal action: Only recently, we reaffirmed in Migra v. Warren City School District Board of Education, 465 U. S. 75 (1984), that a federal court is not free to accord greater preclusive effect to a state court judgment than the state courts themselves would give to it.

The Court now remands with directions for the District Court to consider Illinois claim preclusion law, but no guidance is given as to how the District Court should proceed if it finds state law silent or indeterminate on the claim preclusion question. The Court’s refusal to acknowledge this potential problem appears to stem from a belief that the jurisdictional competency requirement of res judicata doctrine will dispose of most cases like this. See ante, at 882.

I cannot agree with the Court’s interpretation of the jurisdictional competency requirement. If state law provides a cause of action that is virtually identical with a federal statutory cause of action, a plaintiff suing in state court is able to rely on the same theory of the case and obtain the same remedy as would be available in federal court, even when the plaintiff cannot expressly invoke the federal statute because it is within the exclusive jurisdiction of the federal courts. In this situation, the jurisdictional competency requirement is effectively satisfied. Therefore, the fact that state law recognizes the jurisdictional competency requirement does not necessarily imply that a state court judgment has no claim preclusive effect on a cause of action within exclusive federal jurisdiction.

The states that recognize the jurisdictional competency requirement do not all define it in the same terms. Illinois courts have expressed the doctrine in the following manner: “The principle [of res judicata] extends not only to questions which were actually litigated but also to all questions which could have been raised or determined.” Spiller v. Continental Tube Co., 95 Ill. 2d 423, 432, 447 N. E. 2d 834, 838 (1983) (emphasis added); see also, e. g., LaSalle National Bank v. County Board of School Trustees, 61 Ill. 2d 524, 529, 337 N. E. 2d 19, 22 (1975); People v. Kidd, 398 Ill. 405, 408, 75 N. E. 2d 851, 853-854 (1947). In the present case, each petitioner could have alleged a cause of action under the Illinois Antitrust Act, Ill. Rev. Stat., ch. 38, ¶60 — 1 et seq. (1981), in his prior state court lawsuit against respondent. The principles of Illinois res judicata doctrine appear to be indeterminate as to whether petitioners’ ability to raise state antitrust claims in their prior state court suits should preclude their assertion of essentially the same claims in the present federal action. This indeterminacy arises from the fact that the Illinois courts have not addressed whether the notion of “questions which could have been raised” should be applied narrowly or broadly. No Illinois court has considered how the jurisdictional competency requirement should apply in the type of situation presented by this case, where the same theory of recovery may be asserted under different statutes. Nor has any Illinois court considered whether res judicata precludes splitting a cause of action between a court of limited jurisdiction and one of general jurisdiction.

Hence it is likely that the principles of Illinois claim preclusion law do not speak to the preclusive effect that petitioners’ state court judgments should have on the present action. In this situation, it may be consistent with § 1738 for a federal court to formulate a federal rule to resolve the matter. If state law is simply indeterminate, the concerns of comity and federalism underlying § 1738 do not come into play. At the same time, the federal courts have direct interests in ensuring that their resources are used efficiently and not as a means of harassing defendants with repetitive lawsuits, as well as in ensuring that parties asserting federal rights have an adequate opportunity to litigate those rights. Given the insubstantiality of the state interests and the weight of the federal interests, a strong argument could be made that a federal rule would be more appropriate than a creative interpretation of ambiguous state law. When state law is indeterminate or ambiguous, a clear federal rule would promote substantive interests as well: “Uncertainty intrinsically works to defeat the opportunities for repose and reliance sought by the rules of preclusion, and confounds the desire for efficiency by inviting repetitious litigation to test the pre-clusive effects of the first effort.” 18 C. Wright, A. Miller, & E. Cooper, supra n. 3, §4407, at 49.

A federal rule, might be fashioned from the test, which this Court has applied in other contexts, that a party is precluded from asserting a claim that he had a “full and fair opportunity” to litigate in a prior action. See, e. g., Kremer v. Chemical Construction Corp., 456 U. S. 461, 485 (1982); Allen v. McCurry, 449 U. S. 90, 95 (1980); Montana v. United States, 440 U. S. 147, 153 (1979); Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U. S. 313, 328 (1971). Thus, if a state statute is identical in all material respects with a federal statute within exclusive federal jurisdiction, a party’s ability to assert a claim under the state statute in a prior state court action might be said to have provided, in effect^ a “full and fair opportunity” to litigate his rights under the federal statute. Cf. Derish v. San Mateo-Burlingame Board of Realtors, 724 F. 2d 1347 (CA9 1983); Nash County Board of Education v. Biltmore Co., 640 F. 2d 484 (CA4), cert. denied, 454 U. S. 878 (1981).

The Court will eventually have to face these questions; I would resolve them now.

       In this opinion we use the term “claim preclusion” to refer to “res judicata” in a narrow sense, i. e., the preclusive effect of a judgment in foreclosing litigation of matters that should have been raised in an earlier suit. In contrast, we use the term “issue preclusion” to refer to the effect of a judgment in foreclosing relitigation of a matter that has been litigated and decided. See Migra v. Warren City School Dist. Bd. of Ed., 465 U. S. 75, 77, n. 1 (1984).

       Our analysis does not necessarily suggest that the Court of Appeals for the Fourth Circuit erred in its holding in Nash County Board of Education v. Biltmore Co., 640 F. 2d 484, cert. denied, 454 U. S. 878 (1981). The Court of Appeals there applied federal preclusion principles to conclude that a state judgment approving settlement of state antitrust claims barred a subsequent federal antitrust claim. Although our decision today indicates that the Court of Appeals should have looked in the first instance to state law to determine the preclusive effect of the state judgment, the same holding would result if application of state preclusion law suggests that the settlement bars the subsequent federal claim and if there is no exception to § 1738 in these circumstances. Cf. 640 F. 2d, at 487, n. 5 (noting that state law gives preclusive effect to consent judgment). We, of course, do not address those issues here.

       The Chief Justice notes that preclusion rules bar the splitting of a cause of action between a court of limited jurisdiction and one of general jurisdiction, and suggests that state requirements of jurisdictional competency may leave unclear whether a state court action precludes a subsequent federal antitrust claim. Post, at 388-390. The rule that the judgment of a court of limited jurisdiction concludes the entire claim assumes that the plaintiff might have commenced his action in a court in the same system of courts that was competent to give full relief. See Restatement (Second) of Judgments § 24, Comment g (1982). Moreover, the jurisdictional competency requirement generally is understood to imply that state court litigation based on a state statute analogous to a federal statute, e. g., a state antitrust law, does not bar subsequent attempts to secure relief in federal court if the state court lacked jurisdiction over the federal statutory claim. Id., § 26(l)(c), Illustration 2. Although a particular State’s preclusion principles conceivably could support a rule similar to that proposed by The Chief Justice, post, at 390-391, where state preclusion rules do not indicate that a claim is barred, we do not believe that federal courts should fashion a federal rule to preclude a claim that could not have been raised in the state proceedings.

         E. g., by inquiring whether the plaintiff could have raised the question whether the defendant violated a particular statute.

         E. g., by inquiring whether the plaintiff could have raised the question whether the defendant engaged in a group boycott.

       Compare Restatement (Second) of Judgments § 24, Comment g, Illustration 14, pp. 204-205 (1982):
      “In an automobile collision, A is injured and his car damaged as a result of the negligence of B. Instead of suing in a court of general jurisdiction of the state, A brings his action for the damage to his car in a justice’s court, which has jurisdiction in actions for damage to property but has no jurisdiction in actions for injury to the person. Judgment is rendered for A for the damage to the ear. A cannot thereafter maintain an action against B to recover for the injury to his person arising out of the same collision.” See also 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4412, p. 95 (1981), stating that the “general rule” in state courts is that “[a] second action will not be permitted on parts of a single claim that could have been asserted in a court of broader jurisdiction simply because the plaintiff went first to a court of limited jurisdiction in the same state that could not hear them.” The holding in Lucas v. Le Compte, 42 Ill. 303 (1866), is similar to this “general rule,” but that holding was based on a construction of an Illinois statute, Ill. Rev. Stat., ch. 59, §35 (1845), which (a) has been repealed, see Act of Apr. 15, 1965, 1965 Ill. Laws 331, and (b) had a broader preclusive effect than general Illinois res judicata doctrine has. Clancey v. McBride, 338 Ill. 35, 169 N. E. 729 (1929), involved the same circumstances as the above-quoted illustration from the Restatement. The court resolved the case, however, without reference to the limited jurisdiction of the justice’s court, by concluding that injury to the person and injury to property are distinct legal wrongs that can be the subject of separate lawsuits.

       By contrast, when a federal court construes substantive rights and obligations under state law in the context of a diversity action, the federal interest is insignificant and the state’s interest is much more direct than it is in the present situation, even if the relevant state law is ambiguous.


source: Caselaw Access Project

author: Justice O’Connor

license: Public Domain

text:
    AIR FRANCE v. SAKS
    No. 83-1785.
    Argued January 15, 1985
    Decided March 4, 1985

      O’Connor, J., delivered the opinion of the Court, in which all other Members joined, except Powell, J., who took no part in the consideration or decision of the case.

      Stephen C. Johnson argued the cause for petitioner. With him on the briefs was Lawrence N. Minch.

      Carroll E. Dubuc argued the cause for the Republic of France as amicus curiae urging reversal. With him on the brief was Peter Hoenig.

      Bennett M. Cohen argued the cause for respondent. With him on the brief were Daniel U. Smith and Albert R. Abramson.

      Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Lee, Acting Assistant Attorney General Willard, Deputy Solicitor General Getter, Alan I. Horowitz, and Mark H. Gallant; and for the International Air Transport Association by Randal R. Craft, Jr.

   Justice O’Connor

delivered the opinion of the Court.

Article 17 of the Warsaw Convention makes air carriers liable for injuries sustained 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.” We granted certiorari, 469 U. S. 815 (1984), to resolve a conflict among the Courts of Appeals as to the proper definition of the word “accident” as used in this international air carriage treaty.

rH

On November 16, 1980, respondent Valerie Saks boarded an Air France jetliner in Paris for a 12-hour flight to Los Angeles. The flight went smoothly in all respects until, as the aircraft descended to Los Angeles, Saks felt severe pressure and pain in her left ear. The pain continued after the plane landed, but Saks disembarked without informing any Air France crew member or employee of her ailment. Five days later, Saks consulted a doctor who concluded that she had become permanently deaf in her left ear.

Saks filed suit against Air France in California state court, alleging that her hearing loss was caused by negligent maintenance and operation of the jetliner’s pressurization system. App. 2. The case was removed to the United States District Court for the Central District of California. After extensive discovery, Air France moved for summary judgment on the ground that respondent could not prove that her injury was caused by an “accident” within the meaning of the Warsaw Convention. The term “accident,” according to Air France, means an “abnormal, unusual or unexpected occurrence aboard the aircraft.” Id., at 9. All the available evidence, including the postflight reports, pilot’s affidavit, and passenger testimony, indicated that the aircraft’s pressurization system had operated in the usual manner. Accordingly, the airline contended that the suit should be dismissed because the only alleged cause of respondent’s injury — normal operation of a pressurization system — could not qualify as an “accident.” In her opposition to the summary judgment motion, Saks acknowledged that “[t]he sole question of law presented ... by the parties is whether a loss of hearing proximately caused by normal operation of the aircraft’s pressurization system is an ‘accident’ within the meaning of Article 17 of the Warsaw Convention . . . .” Id., at 30. She argued that “accident” should be defined as a “hazard of air travel,” and that her injury had indeed been caused by such a hazard.

Relying on precedent which defines the term “accident” in Article 17 as an “unusual or unexpected” happening, see DeMarines v. KLM Royal Dutch Airlines, 580 F. 2d 1193, 1196 (CA3 1978), the District Court granted summary judgment to Air France. See also Warshaw v. Trans World Airlines, Inc., 442 F. Supp. 400, 412-413 (ED Pa. 1977) (normal cabin pressure changes are not “accidents” within the meaning of Article 17). A divided panel of the Court of Appeals for the Ninth Circuit reversed. 724 F. 2d 1383 (1984). The appellate court reviewed the history of the Warsaw Convention and its modification by the 1966 Montreal Agreement, a private agreement among airlines that has been approved by the United States Government. Agreement Relating to Liability Limitations of the Warsaw Convention and the Hague Protocol, Agreement CAB 18900, 31 Fed. Reg. 7302 (1966), note following 49 U. S. C. App. § 1502. The court concluded that the language, history, and policy of the Warsaw Convention and the Montreal Agreement impose absolute liability on airlines for injuries proximately caused by the risks inherent in air travel. The court found a definition of “accident” consistent with this history and policy in Annex 13 to the Convention on International Civil Aviation, Dec. 7, 1944, 61 Stat. 1180, T. I. A. S. No. 1591, 15 U. N. T. S. 295; conformed to in 49 CFR §830.2 (1984): “an occurrence associated with the operation of an aircraft which takes place between the time any person boards the aircraft with the intention of flight and all such persons have disembarked . . . .” 724 F. 2d, at 1385. Normal cabin pressure changes qualify as an “accident” under this definition. A dissent agreed with the District Court that “accident” should be defined as an unusual or unexpected occurrence. Id., at 1388 (Wallace, J.). We disagree with the definition of “accident” adopted by the Court of Appeals, and we reverse.

Air France is liable to a passenger under the terms of the Warsaw Convention only if the passenger proves that an “accident” was the cause of her injury. MacDonald v. Air Canada, 439 F. 2d 1402 (CA1 1971); Mathias v. Pan Am World Airways, Inc., 53 F. R. D. 447 (WD Pa. 1971). See 1 C. Shawcross & K. Beaumont, Air Law ¶ VII(147) (4th ed. 1984); D. Goedhuis, National Airlegislations and the Warsaw Convention 199 (1937). The narrow issue presented is whether respondent can meet this burden by showing that her injury was caused by the normal operation of the aircraft’s pressurization system. The proper answer turns on interpretation of a clause in an international treaty to which the United States is a party. “[Tjreaties are construed more liberally than private agreements, and to ascertain their meaning we may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties.” Choctaw Nation of Indians v. United States, 318 U. S. 423, 431-432 (1943). The analysis must begin, however, with the text of the treaty and the context in which the written words are used. See Maximov v. United States, 373 U. S. 49, 53-54 (1963).

A

Article 17 of the Warsaw Convention establishes the liability of international air carriers for harm to passengers. Article 18 contains parallel provisions regarding liability for damage to baggage. The governing text of the Convention is in the French language, and we accordingly set forth the French text of the relevant part of Articles 17 and 18 in the margin. The official American translation of this portion of the text, which was before the Senate when it ratified the Convention in 1934, reads as follows: .

“Article 17

“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.
“Article 18
“(1) The carrier shall be liable for damage sustained in the event of 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. 3018-3019.

Two significant features of these provisions stand out in both the French and the English texts. First, Article 17 imposes liability for injuries to passengers caused by an “accident,” whereas Article 18 imposes liability for destruction or loss of baggage caused by an “occurrence.” This difference in the parallel language of Articles 17 and 18 implies that the drafters of the Convention understood the word “accident” to mean something different than the word “occurrence,” for they otherwise logically would have used the same word in each article. See Goedhuis, supra, at 200-201; M. Milde, The Problems of Liabilities in International Carriage by Air 62 (Caroline Univ. 1963). The language of the Convention accordingly renders suspect the opinion of the Court of Appeals that “accident” means “occurrence.”

Second, the text of Article 17 refers to an accident which caused the passenger’s injury, and not to an accident which is the passenger’s injury. In light of the many senses in which the word “accident” can be used, this distinction is significant. As Lord Lindley observed in 1903:

“The word ‘accident’ is not a technical legal term with a clearly defined meaning. Speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss. But it is often used to denote any unintended and unexpected loss or hurt apart from its cause; and if the cause is not known the loss or hurt itself would certainly be called an accident. The word ‘accident’ is also often used to denote both the cause and the effect, no attempt being made to discriminate between them.” Fenton v. J. Thorley & Co., [1903] A. C. 443, 453.

In Article 17, the drafters of the Warsaw Convention apparently did make an attempt to discriminate between “the cause and the effect”; they specified that air carriers would be liable if an accident caused the passenger’s injury. The text of the Convention thus implies that, however we define “accident,” it is the cause of the injury that must satisfy the definition rather than the occurrence of the injury alone. American jurisprudence has long recognized this distinction between an accident that is the cause of an injury and an injury that is itself an accident. See Landress v. Phoenix Mutual Life Ins. Co., 291 U. S. 491 (1934).

While the text of the Convention gives these two clues to the meaning of “accident,” it does not define the term. Nor is the context in which the term is used illuminating. See Note, Warsaw Convention — Air Carrier Liability for Passenger Injuries Sustained Within a Terminal, 45 Ford. L. Rev. 369, 388 (1976) (“The language of Article 17 is stark and undefined”). To determine the meaning of the term “accident” in Article 17 we must consider its French legal meaning. See Reed v. Wiser, 555 F. 2d 1079 (CA2), cert. denied, 434 U. S. 922 (1977); Block v. Compagnie Nationale Air France, 386 F. 2d 323 (CA5 1967), cert. denied, 392 U. S. 905 (1968). This is true not because “we are forever chained to French law” by the Convention, see Rosman v. Trans World Airlines, Inc., 34 N. Y. 2d 385, 394, 314 N. E. 2d 848, 853 (1974), but because it is our responsibility to give the specific words of the treaty a meaning consistent with the shared expectations of the contracting parties. Reed, supra, at 1090; Day v. Trans World Airlines, Inc., 528 F. 2d 31 (CA2 1975), cert, denied, 429 U. S. 890 (1976). We look to the French legal meaning for guidance as to these expectations because the Warsaw Convention was drafted in French by continental jurists. See Lowenfeld & Mendelsohn, The United States and the Warsaw Convention, 80 Harv. L. Rev. 497, 498-500 (1967).

A survey of French cases and dictionaries indicates that the French legal meaning of the term “accident” differs little from the meaning of the term in Great Britain, Germany, or the United States. Thus, while the word “accident” is often used to refer to the event of a person’s injury, it is also sometimes used to describe a cause of injury, and when the word is used in this latter sense, it is usually defined as a fortuitous, unexpected, unusual, or unintended event. See 1 Grand Larousse de La Langue Franchise 29 (1971) (defining “accident” as “Evénement fortuit et fácheux, causant des dommages corporels ou materiels”); Air France v. Haddad, Judgment of June 19,1979, Cour d’appel de Paris, Premiere Chambre Civile, 1979 Revue Frangaise de Droit Aérien 327, 328, appeal rejected, Judgment of February 16, 1982, Cour de Cassation, 1982 Bull. Civ. I 63. This parallels British and American jurisprudence. See Fenton v. J. Thorley & Co., supra; Landress v. Phoenix Mutual Life Ins. Co., supra; Koehring Co. v. American Automobile Ins. Co., 353 F. 2d 993 (CA7 1965). The text of the Convention consequently suggests that the passenger’s injury must be caused by an unexpected or unusual event.

B

This interpretation of Article 17 is consistent with the negotiating history of the Convention, the conduct of the parties to the Convention, and the weight of precedent in foreign and American courts. In interpreting a treaty it is proper, of course, to refer to the records of its drafting and negotiation. Choctaw Nation of Indians v. United States, 318 U. S., at 431. In part because the “travaux preparatoires” of the Warsaw Convention are published and generally available to litigants, courts frequently refer to these materials to resolve ambiguities in the text. See Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U. S. 243, 259 (1984); Maugnie v. Companie Nationale Air France, 549 F. 2d 1256 (CA9 1977); Fothergill v. Monarch Airlines, Ltd., [1980] 2 All E. R. 696 (H. L.).

The treaty that became the Warsaw Convention was first drafted at an international conference in Paris in 1925. The protocol resulting from the Paris Conference contained an article specifying: “The carrier is liable for accidents, losses, breakdowns, and delays. It is not liable if it can prove that it has taken reasonable measures designed to pre-empt damage . . . .” The protocol drafted at Paris was revised several times by a committee of experts on air law, and then submitted to a second international conference that convened in Warsaw in 1929. The draft submitted to the conference stated:

“The carrier shall be liable for damage sustained during carriage:
“(a) in the case of death, wounding, or any other bodily injury suffered by a traveler;
“(b) in the case of destruction, loss, or damage to goods or baggage;
“(c) in the case of delay suffered by a traveler, goods, or baggage.” International Conference on Air Law Affecting Air Questions, Minutes, Second International Conference on Private Aeronautical Law, October 4-12, 1929, Warsaw 264-265 (R. Horner & D. Legrez trans. 1975).

Article 22 of this draft, like the original Paris draft, permitted the carrier to avoid liability by proving it had taken reasonable measures to avoid the damage. Id., at 265. None of the early drafts required that an accident cause the passenger’s injury.

At Warsaw, delegates from several nations objected to the application of identical liability rules to both passenger injuries and damage to baggage, and the German delegation proposed separate liability rules for passengers and baggage. Id., at 36. The need for separate rules arose primarily because delegates thought that liability for baggage should commence upon delivery to the carrier, whereas liability for passengers should commence when the passengers later embark upon the aircraft. Id., at 72-74 (statements of French, Swiss, and Italian delegates). The Reporter on the Preliminary Draft of the Convention argued it would be too difficult to draft language specifying this distinction, and that such a distinction would be unnecessary because “Article 22 establishes a very mitigated system of liability for the carrier, and from the moment that the carrier has taken the reasonable measures, he does not answer for the risks, nor for the accidents occur[r]ing to people by the fault of third parties, nor for accidents occur[r]ing for any other cause.” Id., at 77-78 (statement of Reporter De Vos). The delegates were unpersuaded, and a majority voted to have a drafting committee rework the liability provisions for passengers and baggage. Id., at 83.

A few days later, the drafting committee proposed the liability provisions that became Articles 17 and 18 of the Convention. Article 20(1) of the final draft contains the “necessary measures” language which the Reporter believed would shield the carrier from liability for “the accidents occur[r]ing to people by the fault of third parties” and for “accidents occur[r]ing for any other cause.” Nevertheless, the redrafted Article 17 also required as a prerequisite to liability that an accident cause the passenger’s injury, whereas the redrafted Article 18 required only that an occurrence cause the damage to baggage. Although Article 17 and Article 18 as redrafted were approved with little discussion, the President of the drafting committee observed that “given that there are entirely different liability cases: death or wounding, disappear-anee of goods, delay, we have deemed that it would be better to begin by setting out the causes of liability for persons, then for goods and baggage, and finally liability in the case of delay.” Id., at 205 (statement of Delegate Giannini) (emphasis added). This comment at least implies that the addition of language of causation to Articles 17 and 18 had a broader purpose than specification of the time at which liability commenced. It further suggests that the causes of liability for persons were intended to be different from the causes of liability for baggage. The records of the negotiation of the Convention accordingly support what is evident from its text: A passenger’s injury must be caused by an accident, and an accident must mean something different than an “occurrence” on the plane. Like the text of the Convention, however, the records of its negotiation offer no precise definition of “accident.”

Reference to the conduct of the parties to the Convention and the subsequent interpretations of the signatories helps clarify the meaning of the term. At a Guatemala City International Conference on Air Law in 1971, representatives of many of the Warsaw signatories approved an amendment to Article 17 which would impose liability on the carrier for an “event which caused the death or injury” rather than for an “accident which caused” the passenger’s injury, but would exempt the carrier from liability if the death or injury resulted “solely from the state of health of the passenger.” International Civil Aviation Organization, 2 Documents of the International Conference on Air Law, Guatemala City, ICAO Doc. 9040-LC/167-2, p. 189 (1972). The Guatemala City Protocol of 1971 and the Montreal Protocols Nos. 3 and 4 of 1975 include this amendment, see S. Exec. Rep. No. 98-1 (1983), but have yet to be ratified by the Senate, and therefore do .not govern the disposition of this case. The statements of the delegates at Guatemala City indicate that they viewed the switch from “accident” to “event” as expanding the scope of carrier liability to passengers. The Swedish Delegate, for example, in referring to the choice between the words “accident” and “event,” emphasized that the word “accident” is too narrow because a carrier might be found liable for “other acts which could not be considered as accidents.” See International Civil Aviation Organization, 1 Minutes of the International Conference on Air Law, ICAO Doc. 9040-LC/167-1, p. 34 (1972). See also Mankiewicz, Warsaw Convention: The 1971 Protocol of Guatemala City, 20 Am. J. Comp. L. 335, 337 (1972) (noting that changes in Article 17 were intended to establish “strict liability”).

In determining precisely what causes can be considered accidents, we “find the opinions of our sister signatories to be entitled to considerable weight.” Benjamins v. British European Airways, 572 F. 2d 913, 919 (CA2 1978), cert. denied, 439 U. S. 1114 (1979). While few decisions are precisely on point, we note that, in Air France v. Haddad, Judgment of June 19, 1979, Cour d’appel de Paris, Premiere Chambre Civile, 1979 Revue Franchise de Droit Aérien, at 328, a French court observed that the term “accident” in Article 17 of the Warsaw Convention embraces causes of injuries that are fortuitous or unpredictable. European legal scholars have generally construed the word “accident” in Article 17 to require that the passenger’s injury be caused by a sudden or unexpected event other than the normal operation of the plane. See, e. g., O. Riese & J. Lacour, Précis de Droit Aérien 264 (1951) (noting that Swiss and German law require that the damage be caused by an accident, and arguing that an accident should be construed as an event which is sudden and independent of the will of the carrier); 1 C. Shawcross & K. Beaumont, Air Law ¶ VII(148) (4th ed. 1984) (noting that the Court of Appeals for the Third Circuit’s definition of accident accords with some English definitions and “might well commend itself to an English court”). These observations are in accord with American decisions which, while interpreting the term “accident” broadly, Maugnie v. Compagnie Nationale Air France, 549 F. 2d, at 1259, nevertheless refuse to extend the term to cover routine travel procedures that produce an injury due to the peculiar internal condition of a passenger. See, e. g., Abramson v. Japan Airlines Co., 739 F. 2d 130 (CA3 1984) (sitting in airline seat during normal flight which aggravated hernia not an “accident”), cert. pending, No. 84-939; MacDonald v. Air Canada, 439 F. 2d 1402 (CA5 1971) (fainting while waiting in the terminal for one’s baggage not shown to be caused by an “accident”); Scherer v. Pan American World Airways, Inc., 54 App. Div. 2d 636, 387 N. Y. S. 2d 580 (1976) (sitting in airline seat during normal flight which aggravated thrombophlebitis not an “accident”).

Ill

We conclude that liability under Article 17 of the Warsaw Convention arises only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger. This definition should be flexibly applied after assessment of all the circumstances surrounding a passenger’s injuries. Maugnie, supra, at 1262. For example, lower courts in this country have interpreted Article 17 broadly enough to encompass torts committed by terrorists or fellow passengers. See Evangelinos v. Trans World Airlines, Inc., 550 F. 2d 152 (CA3 1977) (en banc) (terrorist attack); Day v. Trans World Airlines, Inc., 528 F. 2d 31 (CA2 1975) (en banc) (same), cert. denied, 429 U. S. 890 (1976); Krystal v. British Overseas Airways Corp., 403 F. Supp. 1322 (CD Cal. 1975) (hijacking); Oliver v. Scandinavian Airlines System, 17 CCH Av. Cas. 18,283 (Md. 1983) (drunken passenger falls and injures fellow passenger). In cases where there is contradictory evidence, it is for the trier of fact to decide whether an “accident” as here defined caused the passenger’s injury. See DeMarines v. KLM Royal Dutch Airlines, 580 F. 2d 1193 (CA3 1978) (contradictory evidence on whether pressurization was normal). See also Weintraub v. Capitol International Airways, Inc., 16 CCH Av. Cas. 18,058 (N. Y. Sup. Ct., 1st Dept., 1981) (plaintiff’s testimony that “sudden dive” led to pressure change causing hearing loss indicates injury was caused by an “accident”). But when the injury indisputably results from the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft, it has not been caused by an accident, and Article 17 of the Warsaw Convention cannot apply. The judgment of the Court of Appeals in this case must accordingly be reversed.

We recognize that any standard requiring courts to distinguish causes that are “accidents” from causes that are “occurrences” requires drawing a line, and we realize that “reasonable [people] may differ widely as to the place where the line should fall.” Schlesinger v. Wisconsin, 270 U. S. 230, 241 (1926) (Holmes, J., dissenting). We draw this line today only because the language of Articles 17 and 18 requires it, and not because of any desire to plunge into the “Serbon-ian bog” that accompanies attempts to distinguish between causes that are accidents and injuries that are accidents. See Landress v. Phoenix Mutual Life Ins. Co., 291 U. S., at 499 (Cardozo, J., dissenting). Any injury is the product of a chain of causes, and we require only that the passenger be able to prove that some link in the chain was an unusual or unexpected event external to the passenger. Until Article 17 of the Warsaw Convention is changed by the signatories, it cannot be stretched to impose carrier liability for injuries that are not caused by accidents. It remains “[o]ur duty. . . to enforce the . . . treaties of the United States, whatever they might be, and . . . the Warsaw Convention remains the supreme law of the land.” Reed, 555 F. 2d, at 1093.

Our duty to enforce the “accident” requirement of Article 17 cannot be circumvented by reference to the Montreal Agreement of 1966. It is true that in most American cases the Montreal Agreement expands carrier liability by requiring airlines to waive their right under Article 20(1) of the Warsaw Convention to defend claims on the grounds that they took all necessary measures to avoid the passenger’s injury or that it was impossible to take such measures. Because these “due care” defenses are waived by the Montreal Agreement, the Court of Appeals and some commentators have characterized the Agreement as imposing “absolute” liability on air carriers. See Lowenfeld & Mendelsohn, 80 Harv. L. Rev., at 599. As this case demonstrates, the characterization is not entirely accurate. It is true that one purpose of the Montreal Agreement was to speed settlement and facilitate passenger recovery, but the parties to the Montreal Agreement promoted that purpose by specific provision for waiver of the Article 20(1) defenses. They did not waive other provisions in the Convention that operate to qualify liability, such as the contributory negligence defense of Article 21 or the “accident” requirement of Article 17. See War-shaw, 442 F. Supp., at 408. Under the Warsaw Convention as modified by the Montreal Agreement, liability can accordingly be viewed as “absolute” only in the sense that an airline cannot defend a claim on the ground that it took all necessary measures to avoid the injury. The “accident” requirement of Article 17 is distinct from the defenses in Article 20(1), both because it is located in a separate article and because it involves an inquiry into-the nature of the event which caused the injury rather than the care taken by the airline to avert the injury. While these inquiries may on occasion be similar, we decline to employ that similarity to repeal a treaty provision that the Montreal Agreement on its face left unaltered.

Nor can we escape our duty to enforce Article 17 by reference to the equation of “accident” with “occurrence” in Annex 13 to the Convention on International Civil Aviation. The definition in Annex 13 and the corresponding Convention expressly apply to aircraft accident investigations, and not to principles of liability to passengers under the Warsaw Convention. See B. Cheng, The Law of International Air Transport 106-165 (1962).

Finally, respondent suggests an independent ground supporting the Court of Appeals’ reversal of the summary judgment against her. She argues that her original complaint alleged a state cause of action for negligence independent of the liability provisions of the Warsaw Convention, and that her state negligence action can go forward if the Warsaw liability rules do not apply. Expressing no view on the merits of this contention, we note that it is unclear from the record whether the issue was raised in the Court of Appeals. We leave the disposition of this claim to the Court of Appeals in the first instance. See Hoover v. Ronwin, 466 U. S. 558, 574, n. 25 (1984).

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Powell took no part in the consideration or decision of this case.

       Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T. S. No. 876 (1934), note following 49 U. S. C. App. § 1502.

       “Article 17
      “Le transporteur est responsable du dommage survenu en cas de mort, de blessure ou de toute autre lésion corporelle subie par un voyageur lorsque l’accident qui a causé le dommage s’est produit á bord de l’aéronef ou au cours de toutes opérations d’embarquement et de débarquement.
      “Article 18
      “(1) Le transporteur est responsable du dommage survenu en eas destruction, perte ou avarie de bagages enregistrés ou de marchandises lorsque l’événement qui a causé le dommage s’est produit pendant le transport aérien.” 49 Stat. 3005 (emphasis added).
      Article 36 of the Convention recites that it is drawn in French. Id., at 3008.

       See, e. g., M. LeGrand, Dictionnaire Usuel de Droit 8 (1931) (defining “accident” as “Evénement fortuit et malheureux qui ouvre á la victime, soit par suite de l’imprévoyance ou de la négligence d’une personne, soit en vertu du ‘risque professionel,’ droit á une réparation pécuniaire”).

       “Le transporteur est responsable des accidents, pertes, avaries et retards. II n’est pas responsable s’il prouve avoir pris les mesures raisonnables pour éviter le dommage . . . .” [1925 Paris] Conférence Internationale de Droit Privé Aérien 87 (1936).

       See Report of the Second Session, International Technical Committee of Legal Experts on Air Questions (1927); Report of the Third Session, International Technical Committee of Legal Experts on Air Questions (1928).


author:
Per Curiam.
      Justice Marshall,

text:
    ST. LOUIS SOUTHWESTERN RAILWAY CO. v. DICKERSON
    No. 84-914.
    Decided March 4, 1985
   Per Curiam.

In this case, the Missouri Court of Appeals upheld a trial court’s refusal to instruct the jury in a Federal Employers’ Liability Act case that its award to the plaintiff should reflect the present value of any future losses the plaintiff should sustain. Because such an instruction is required as a matter of federal law, we reverse.

On December 11, 1978, respondent, a railroad policeman, was permanently disabled in a fall from a railroad car that he was inspecting for evidence of vandalism. Alleging that the fall was the result of petitioner’s negligence, he brought suit under the Federal Employers’ Liability Act (FELA), 35 Stat. 65, as amended, 45 U. S. C. §51 et seq., in the Circuit Court of the city of St. Louis. Respondent introduced evidence that his future wage losses resulting from his injuries would, over the course of his lifetime, amount to somewhere in the neighborhood of $1 million.

Petitioner requested that the judge submit to the jury the following instruction:

“If you find in favor of Plaintiff and decide to make an award for any loss of earnings in the future, you must take into account the fact that the money awarded by you is being received all at one time instead of over a period of time extending into the future and that Plaintiff will have the use of this money in a lump sum. You must, therefore, determine the present value or present worth of the money which you award for such future loss.”

The trial judge refused to submit the instruction because such an instruction was not provided for in the Missouri Approved Instructions promulgated by the Supreme Court of Missouri for use in FELA cases. Accordingly, the jury instructions on damages were limited to the following:

“If you find the issues in favor of plaintiff, then you must award plaintiff such sum as you believe will fairly and justly compensate plaintiff for any damages you believe he sustained and is reasonably certain to sustain in the future as a result of the fall on December 11, 1978 mentioned in the evidence. Any award you make is not subject to income tax.”

The jury found that the fall was the result of petitioner’s negligence and awarded respondent $1 million in damages.

The Missouri Court of Appeals affirmed. 674 S. W. 2d 165 (1984). Rejecting petitioner’s contention that the failure to instruct the jury on present value was error, the court held that a present-value instruction was inappropriate as a matter of Missouri law. The court’s ruling was in accord with two previous opinions of the Missouri Supreme Court holding that because the Missouri Approved Instructions do not call for a present-value instruction in FELA cases, such an instruction may not be given. Bair v. St. Louis-San Francisco B. Co., 647 S. W. 2d 507 (en banc), cert. denied sub nom. Burlington Northern Inc. v. Bair, 464 U. S. 830 (1983); Dunn v. St. Louis-San Francisco R. Co., 621 S. W. 2d 245 (1981) (en banc), cert. denied sub nom. Burlington Northern R. Co. v. Dunn, 454 U. S. 1145 (1982).

As a general matter, FELA cases adjudicated in state courts are subject to state procedural rules, but the substantive law governing them is federal. Although the Court’s decisions in this area “point up the impossibility of laying down a precise rule to distinguish ‘substance’ from ‘procedure,’” Brown v. Western R. Co. of Alabama, 338 U. S. 294, 296 (1949), it is settled that the propriety of jury instructions concerning the measure of damages in an FELA action is an issue of “substance” determined by federal law. Norfolk & Western R. Co. v. Liepelt, 444 U. S. 490, 493 (1980). Accordingly, petitioner’s contention that it was entitled to a jury instruction on present value cannot be dismissed on the ground that such an instruction is not to be found in the Missouri Approved Instructions. Whether such an instruction should have been given is a federal question.

Not only is it a federal question, but it is also one to which existing law provides a clear answer. Nearly 70 years ago, this Court held that a defendant in an FELA case is entitled to have the jury instructed that “when future payments or other pecuniary benefits are to be anticipated, the verdict should be made up on the basis of their present value only.” Chesapeake & Ohio R. Co. v. Kelly, 241 U. S. 485, 491 (1916). The rationale for such an instruction is simple:

“The damages should be equivalent to compensation for the deprivation of the reasonable expectation of pecuniary benefits that would have resulted from the continued life of the deceased. ... So far as a verdict is based upon the deprivation of future benefits, it will afford more than compensation if it be made up by aggregating the benefits without taking account of the earning power of the money that is presently to be awarded. It is self-evident that a given sum of money in hand is worth more than the like sum of money payable in the future.” Id., at 489.

We have never disapproved of Kelly or its rationale. The Federal Courts of Appeals have continued to rely on Kelly as a definitive statement of the law applicable to FELA cases, see, e. g., Beanland v. Chicago, R. I. & P. R. Co., 480 F. 2d 109, 115 (CA8 1973), and we have ourselves recently reaffirmed our adherence to Kelly’s principle that damages awards in suits governed by federal law should be based on present value. See Jones & Laughlin Steel Corp. v. Pfeifer, 462 U. S. 523, 536-537 (1983). Although our decision in Jones & Laughlin makes clear that no single method for determining present value is mandated by federal law and that the method of calculating present value should take into account inflation and other sources of wage increases as well as the rate of interest, it is equally clear that an utter failure to instruct the jury that present value is the proper measure of a damages award is error. The Missouri courts’ refusal to allow instruction of FELA juries on present value is thus at odds with federal law. The petition for a writ of certiorari is therefore granted, and the judgment is

Reversed.

Justice Powell took no part in the consideration or decision of this case.

Justice Marshall,

dissenting.

I continue to object to deciding cases without granting to either party an opportunity to argue the merits by either brief or oral argument. I therefore dissent.