A Federal Page report yesterday should have said that while many family members of the victims of the terrorist bombing of Pan American Flight 103 actively support the Montreal Protocols, one group, The Victims of Pan Am Flight 103, opposes ratification. Consumers Union and Public Citizen also are opponents, although they have not been involved in day-to-day lobbying against the treaty. (Published 10/20/90)
For 15 years, four presidents have lobbied for Senate ratification of a treaty to change the way international airline passengers are compensated for crashes. In that time, it has reached the Senate floor only three times, the last defeat coming in 1983.
This year, the government and the airline industry are trying again. Secretary of State James A. Baker III and Transportation Secretary Samuel K. Skinner have made personal appeals. The airlines have made it one of their top priorities. Congress's General Accounting Office says it is a good idea. Some family groups representing the victims of Korean Air Lines Flight 007 and Pan American Flight 103 are lobbying for it. The President's Commission on Aviation Security and Terrorism, formed after the Pan Am bombing, supported it. The American Bar Association supports it. The Senate Foreign Relations Committee approved it 13 to 2.
Only one major group is actively lobbying against it, the Association of Trial Lawyers of America.
But it appears the treaty -- called the Montreal Protocols -- may stumble through one more Congress without floor debate.
The plight of the Montreal Protocols illustrates how one dedicated lobby group with powerful friends can frustrate the weight of the U.S. government and a major industry, especially if those friends include Judiciary Committee Chairman Joseph R. Biden (D-Del.), aviation subcommittee Chairman Wendell H. Ford (D-Ky.) and Sen. Ernest F. Hollings (D-S.C.), a former trial lawyer.
The issues involved go to the heart of an American's right to sue, and there are serious arguments for both sides.
The Montreal Protocols were developed in 1975 at a meeting of the International Civil Aviation Organization (ICAO) in Montreal. The treaty would revise the Warsaw Convention of 1929 -- the small print on the back of airline tickets that many passengers ignore -- which provided an automatic $10,000 per passenger to the survivors of passengers killed in crashes no matter what the reason.
The Warsaw Convention was updated in 1966 to provide $75,000 to U.S. citizens. But throughout its history, the Warsaw Convention has allowed passengers to sue airlines for additional damages if they could prove the airline was guilty of "willful misconduct."
The Montreal Protocols would increase automatic payments to about $130,000, a change that is generally accepted. But the trial lawyers are adamantly opposed to another basic change, a new supplemental compensation plan financed by a $3 fee on each international passenger that would pay for additional damages -- including for pain and suffering -- in an arbitration procedure outside the courts.
"This is a mandatory insurance scheme that adds to the price of the ticket," said Alan Parker, a spokesman for the trial lawyers. He said the purpose of the treaty is to "totally insulate the airline" from liability.
The government and the airlines argue that the current system isn't working. They point to the Soviet Union's downing of Korean Air Lines Flight 007. Seven years later, not one passenger has collected a cent as the cases go through the courts. Under the Montreal Protocols, cases would be settled within nine months, with survivors proving only loss, not fault. Survivors could then sue others, such as the maker of the plane.
While the debate goes on, the treaty does not.
That is due to a tightly run lobbying strategy involving four senators who agree philosophically with the trial lawyers -- Biden, Ford, Hollings and Sen. Paul Simon (D-Ill.) -- plus two of Washington's most effective lobbyists, Tom Korologos and Thomas H. Boggs.
The strategy is simple. Whenever Korologos or Boggs detects any movement on the treaty, they contact the trial lawyers who then mobilize their membership, which includes many politically active people throughout the country.
An airline lobbyist said that in 1983 -- when the vote was 50 to 42, far short of the 67 needed to ratify the treaty -- one unidentified senator was set to vote for the treaty and was surrounded by staff members working to bolster his resolve. Then came the phone call from his home district.
"One trial lawyer called him, and after that phone call, we lost him," said the lobbyist.
Asked about his and Boggs's role, Korologos said, "What do you want me to say except guilty? We double up on them pretty good."
This year, the airlines were the victim of a delaying game, sources said. Senate Foreign Relations Committee Chairman Claiborne Pell (D-R.I.) and most of his staff are sympathetic to the treaty, and promised to hold a hearing early in the session. But the hearing was repeatedly delayed.
The problem apparently was that the staff member who was working with the airlines was unsympathetic, and was sitting on the hearing requests. When the industry went directly to higher staff members, the hearing was held promptly, but it was November and a year had been lost, the sources said.
The trial lawyers gained further delay by convincing the committee to ask for a GAO report. The report strongly favored the treaty, but it ate up another six months.
Sources in the Transportation Department said a quiet but intense lobbying effort had been effective but acknowledged that time favors the opponents.
Nancy H. Van Duyne, director of federal legislation for the Air Transport Association, said the airlines have been doubly frustrated by their inability to publicize the treaty. Over the last year, they have held several sessions with reporters to explain the treaty and its implications, but hardly a word has been printed. The frustration was intensified when a morning television news program did a feature on the the Warsaw Convention and international travel, but did not mention the Montreal Protocols.
Now, with only days left in the congressional session, a filibuster could easily kill the treaty, and it is unlikely it will be brought up. Biden and Simon, sources said, have sent a note to Majority Leader George J. Mitchell (D-Maine) detailing their objections and saying they would want to "pursue our objections at length" on the Senate floor.
Biden said he will not stage a filibuster but acknowledged others might.
"I'd think that anything that would run the potential of extended debate would have a rocky road," said Biden, who wrote a scholarly rebuttal to the GAO report and who is opposed to anything that would erode the right to a day in court.
A spokesman for Mitchell said no decision has been made on whether to bring up the treaty.