Plaintiffs and petitioners are survivors of the persons killed aboard Korean Air Lines flight when the plane was destroyed by a Soviet fighter jet. Warsaw Convention limits recoverable damages for injuries while being aboard an international flight, and a private agreement among the airlines, called the Montreal Agreement, requires the airlines to provide a warning in a font size no smaller than 10 points. However, KAL's warning was in 8 point. Plaintiffs moved for a summary judgment to lift the Warsaw Convention limits based on this failure.
The Supreme Court affirmed the lower court decisions to deny the motion. Justice Scalia found the Montreal Agreement did not provide for such a sanction as limiting the damages cap, and the Warsaw Convention only provided that the notice of the damage cap should be "adequate." Concurring opinion by Justice Brennan said: "I agree that the interpretation of the Warsaw Convention advanced by petitioners should be rejected, but I consider it entitled to a more respectful burial than has been accorded." Justice Brenan noted in Lisi v. Alitalia-Linee Aeree Italiane S.p.A., 370 F.2d 508 (2d Cir. 1966), aff'd 390 U.S. 455 (1968), the equally divided Supreme Court affirmed a case in which it found the warning given in 4-point font was inadequate, and two Circuit Courts held warnings given in 8.5-point font and 9-point font were inadequate. Ultimately, however, Justice Brennan believed that 8-point font was adequate.
It's a bit of a surprise for me to learn that Korean Air Lines had defended many, many Supreme Court cases. Who knew? And the litigation is about font size. No wonder lawyers are dreary people.