Opposition — Reed v. Wiser

In THE

Supreme Court of the United SembesRooAK. 38.ciens

OCTOBER TERM, 1977

>

RUTH ANN REED, as Administratrix of the Estate of

DAN WILLIAM REED, deceased, and as parent, nat-

ural guardian, and best friend of CYNTHIA ANN

REED, DEBORA LYNN REED and JULIE MARIE

REED, all infants et al.,

Petitioners,

v.

FORWOOD CLOUD WISER, JR., and

RICHARD E. NEUMAN,

Respondents.

On Petition For Wair Or Certionant To THe Untrep

Sratzs Court Or Appears For rue Seconp Cimcurr

—_—_—_—_—

RESPONDENTS’ BRIEF IN OPPOSITION

a aanns

Joun J. Martin and

Epwarp M. O’Brien

14 Wall Street

New York, New York 10005

Attorneys for Respondents

Of Counsel

Bieuam Enciar Jones & Houston

14 Wall Street

New York, New York 10005

TABLE OF CONTENTS

PAGE

I ini etek en onde whi acdddianeede 1

SE Windod Gob ia ckdbednceibeecbiee ceiccte, 2

I Sg i di i is sla Oi tose 2

I 2

IR OE IID: ind Ccedic ceec cath oee Loeb liek 2

IE FA BUC AGE duc Ab dada dictenetdiseenc<cace 4

I. The Decision Below Is Clearly Correct ........ 5

II. There Is No Conflict Of Decision ........... 10

Ill. There Is No Important Question Of Federal

Be itl degen dndtbodbackdebtih scans ts cin dhe 12

SUN Gi dtih Ss Walkie nd eke ouawideks cok docu. 14

TaBLe OF AUTHORITIES

Cases:

Block v. Compagnie Nationale Air France, 386 F.2d

323, 337-38 (5th Cir. 1967) .................. 6, 7,13

Communist Party v. Subversive Activities Control

Board, 376 U.S. 1, 71 (1961) .................. 11

Day v. Trans World Airlines, Inc., 528 F.2d 31, 36-38

He MND SEE eUidc pune bbavidduceadce ces, 6, 8,13

Eck v. United Arab Airlines, Inc., 15 N.Y.2d 53, 59

(1964) 255 N.Y.S.2d 249, 252 ................. 6

ii TABLE OF CONTENTS

PAGE

Evangelinos v. Trans World Airlines, Inc., 550 F.2d

Eo bass Codd ede peat aeunhéveny 6

Geofroy v. Riggs, 133 U.S. 258, 270 (1889) ........ 8

In re Pago Pago Air Crash of January 30, 1974, 419

F.Supp. 1158 (C.D.Cal. 1976) ................ 11

In re Paris Air Crash of March 3, £974, 399 F.Supp.

Ve UIE UMD. ov nbn ccccecvce cdSsbeees xs 8

Jones v. Archibald, 45 A.D.2d 532 (4th Dept. 1974) .. 11

Lutz Feed Co., Inc. v. Audet & Company, Inc., et al.,

Fe EE Ft EENED oko veccct cea ceAlde le ceeve 11

Maximov v. United States, 299 F.2d 565, 568 (2d Cir.

1962) aff’d 373 U.S. 49 (1963) ................ 8

Michaels, v. Lipenana Holding Corp., 11 A.D.2d 12

I lS 9,11

Pierre v. Eastern Airlines, Inc., 152 F.Supp. 486

EES Ce a SEER? ee Rage 10

Rosman v. Trans World Airlines, Inc., 34 N.Y.2d

385 (1974), 358 N.Y.S.2d 97 .................. 6

Treaties:

Warsaw Convention, 49 Stat. 3000, et seq. ......... 2, 6

Montreal Agreement CAB 18990, Order E-23680 ... 3

Statutes:

Death on the High Seas Act, 46 U.S.C. See. 761,

OS GED: cecewetveves cedevecdcsueceiccliceeein. 3, 9

28 UBC. Boss. 1508, 1888 o.oo ccc cc cbbeces 3

TABLE OF CONTENTS

Other Authorities:

Aeronautical Statutes and Related Materials, pp. 512-

Be UNO ME eo Sdalsin Sada ccvcoccccs

Agreement CAB 25632, Docket No. 28713, Order

77-7-85, dated July 20, 1977 ...............005.

Aviation Law Reporter (CCH) Vol. 3 (looseleaf),

fl 27,064, pp. 24,059-2, 24,059-3 ................

H. Drion, Limitations of Liabilities in International

PP N56 645 Biko Sd ntiib ds Sieb0 00

Martin, Death and Injury in International Air Trans-

port, 41 J.Air. L. & Com. 255, 256 ............

2A Warren's Negligence, Sec. 3.03, pp. 50-55 ......

ee

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

No. 339

+.

. 4

Rutn Ann Reep, as Administratrix of the Estate of Dan

Wim Rezep, deceased, and as parent, natural guardian,

and best friend of CynrHia Ayn Reep, Desora Lynn

Reep and Juv Marie Reep, al! infants et al.,

Petitioners,

v.

Forwoop Coup Wiser, Jr., and Ricnarp E. Neuman, |

Respondents.

On Petition For Writ Or Certrorant To THe Untrep

Srates Court or Appgats For Tue Seconp Ciacurr

-.

—

RESPONDENTS’ BRIEF IN OPPOSITION

Opinions Below

The Opinion of the Court of Appeals is repo:ied at 555

F.2d 1079 and also appears in petitioners’ separate Ap-

pendix to the petition (A28a). The Opinion of the District

Court is reported at 414 F.Supp. 863 and also appears in

petitioners’ Appendix (A6la).

Jurisdiction

The jurisdictional requisites are adequately set forth in

the petition.

Treaty Involved

The Treaty involved in this litigation is officially entitled

“Convention For The Unification Of Certain Rules Relat-

ing To International Transportation by Air”. It is com-

monly known as the Warsaw Convention. The official

French text is reported at 49 Stat. 3000 and the unofficial

English translation is reported at 49 Stat. 3014, T.S. No.

876. Adherence of the United States was proclaimed on

October 29, 1934, 49 Stat. 3013. Articles 17, 20, 22, 24 and

25 of the French text and English translation are set forth

in the petition at pages 3-6.

Question Presented

When employees of an air carrier are sued individually

in actions governed by the Warsaw Convention are they

entitled to the protection of the Treaty’s limitations of

liability or is that protection only for the benefit of their

employers?

Statement of the Case

This action arises out of the crash of a Trans World Air-

lines, Inc. (T.W.A.) 707 jet aircraft into the high seas ap-

proximately 50 nautical miles west of Cephalonia, Greece,

on September 8, 1974 (R.7 §3).* All aboard died in the

crash. Petitioners-plaintiffs allege that a bomb or other

explosive device was permitted to be placed or carried

aboard the aircraft and that it exploded shortly after tak-

a

* References preceded by “R” refer to pages in the record con-

tained in the Joint Appendix, filed in the Court of Appeals.

3

ing off from Athens, Greece, causing the loss of control of

the aircraft and its crash into the Ionian Sea (R.7 { 6).

Petitioners, the personal representatives of the estates

of 9 of the passengers, sue in negligence to recover wrong-

ful death damages from defendants-respondents, the then

President of T.W.A. and the Staff Vice-President of Audit

and Security of T.,7.A. (R.7 7] 4,5). T.W.A. is not named

as a defendant in this action, although it is sued by these

petitioners in a separate action pending in the Southern

District of New York (75 Civil 3136). Jurisdiction in the

District Court is based upon 46 U.S.C. Sec. 761 et seq., The

Death on the High Seas Act. Jurisdiction is also alleged

under 28 U.S.C. Sees. 1332, 1333 and the general maritime

law (R.7).

In their Second Affirmative Defense the defendants

pleaded the decedents’ transportation was governed by

the provisions of the Warsaw Convention, as amended by

the Montreal Agreement,* and that defendants’ liability,

if any, was limited to a maximum of $75,000.00 for the

death of each passenger (R.26-28). Plaintiffs’ motion to

strike this defense as legally insufficient was granted by

the District Court (R.286; A.6b). On defendants’ motion,

the District Court certified the question for an inter-

locutory appeal to the Court of Appeals (R.302). The

Court of Appeals thereafter granted defendants leave to

appeal (R.303). Jurisdiction of the Court of Appeals

is based on the Interlocutory Appeals Act, 28 U.S.C.

See. 1292(b). The Court of Appeals reversed the Order

of the District Court “with instructions to reinstate de-

fendants’ defense based on that Convention”, 555 F.2d at

1079; A.57a-59a. Petitioners’ motion for rehearing or

rehearing en banc was denied (A.60a).

* Agreement Relating To Liability Limitations Of The Warsaw

Convention And “Soe Protocol, Agreement CAB 18990,

proved by order E- , May 13, 1966 (Docket 17325).

Agreement has the general effect of increasing the Treaty’s limits

to $75,000, and imposing absolute liability on the carrier.

4

ARGUMENT

Petitioners make no claim that the Warsaw Convention

Treaty is unconstitutional. A mere reading of their peti-

tion demonstrates that all they are claiming is that the

Court of Appeals’ decision is erroneous. Their petition

offers nothing more than the same arguments, in abbre-

viated form, which the Court of Appeals so emphatically

rejected. They cite no new or different cases to support

their arguments; the ten cases cited in the petition were

also cited to and considered by the Court of Appeals.

The Warsaw Convention has been the supreme law of

the land since this country adhered to that treaty in 1934.

Yet during the 43 years that have elapsed since that time

and the decision below, only one court was ever called upon

to decide whether the treaty’s limitation of liability applied

to the airline’s employee as well as his employer. Surely,

this lends strong support for the conclusion that the courts,

the bar and the public had always accepted what the Court

of Appeals determined—that the limitation applied to

both. This conclusion is fortified by the fact that the War-

saw Convention is undoubtedly the subject of more litiga-

tion in the United States than any other treaty. See,

Martin, Death and Injury in International Air Transport,

41 J. Air L. & Com. 255, 256 (1975).

The petitioners’ arguments, if accepted, would render

this treaty* meaningless. Their contention, that the limita-

tion of liability in Article 22(1) applies only to the ‘‘car-

rier’’, simply because ‘‘servants’’ or ‘‘employees”’ are not

specifically mentioned (Petition, Point II, p. 8), is based

upon nothing more than a strict literal reading of the

*As of July, 1976, there were approximately 114 member

nations which were jes to the Warsaw Convention. Aviation

ng 8 — (CCH) Vol. 3 (looseleaf), {| 27,054, pp. 24,059-2,

5

treaty without any thought given to the purposes and ob-

jectives of the treaty or to what the Convention’s delegates

sought to accomplish. Judge Mansfield, in his opinion in

the Court of Appeals (A.28a, A.55a), said of this ap-

proach:

**Tt is difficult to imagine an interpretation more at

odds with the acknowledged purposes of the Conven-

tion than that for which [petitioners] press.” 555

F.2d -at 1092.

On the single and narrow issue involved in this case the

decision of the Court of Appeals was clearly correct. There

is no asserted conflict of decision with any other Circuit.

In light of the treaty’s fundamental purpose to regulate

the liability of the air carrier in a uniform manner, no

other result could have been reached.

IL.

The Decision Below Is Clearly Correct

After a thorough and searching examination of the en-

tire Warsaw Convention, including its relevant provisions,

legislative and subsequent history, and overall purposes,

the Court of Appeals concluded that unless the liability

limits of the treaty applied to the carrier’s employees the

objectives of the treaty’s pertinent provisions would be

frustrated. The Court of Appeals noted that if the treaty’s

uniform liability limitations could be circumvented by the

simple device of suing the carrier’s employees, as was

done in this case, the entire character of international air

disaster litigation involving aircraft of American air car-

riers would be radically changed because the air carriers

then would be forced to provide indemnity to such em-

ployees, if they had not already done so, for recoveries

higher than the uniform limits specified in the treaty

(A.32a). The consequence of such suits was pointed out

by Judge Mansfield (A.48a) :

“To permit a suit for an unlimited amount of dam-

ages against a carrier’s employees for personal in-

juries to a passenger would unquestionably undermine

this purpose behind Article 22, since it would permit

plaintiffs to recover from the carrier through its em-

ployees damages in excess of the Convention’s limits.

This impact was recognized by Professor Drion prior

to the Hague Conference when he urged that the inter-

pretation presently sought by [respondents] be given

to the Warsaw provisions:

‘Any other solution would defeat the purpose of

Article 24, which is to prevent claimants from avoid-

ing the provisions of the Convention by suing the

enterprise outside the contract of carriage.’

H. Drion, Limitations of Liabilities in International

Air Law 158 (1954).” 555 F.2d at 1089.

Judge Mansfield then noted that “Virtually all delegates

. . . agreed that unless the limits applied the Conven-

tion’s pertinent provisions would be frustrated.” (id.).

It cannot be disputed that the Warsaw Convention’s

most fundamental objective is to provide a uniform system

of liability and litigation rules for international air dis-

asters. Not only was the Court of Appeals of this view

(A.55a) but the treaty itself, in its Preamble, clearly ar-

ticulates this desired uniformity of liability, 49 Stat. 3000,

3014. See, also, Block v. Compagnie Nationale Air France,

386 F.2d 323, 337-28 (Sth Cir. 1967); Eck v. United Arab

Airlines, Inc., 15 N.Y.2d 53, 59 (1964), 255 N.Y.S.2d 249,

252; Rosman v. Trans World Airlines, Inc., 34 N.Y.2d 385,

396 (1974), 358 N.Y.S.2d 97, 106; Day v. Trans World Air-

lines, Inc., 528 F.2d 31, 36-38 (2d Cir. 1975); Evangelinos

v. Trans World Airlines, Inc., 550 F.2d 152 (3d Cir. 1977).

It is clear, therefore, that the Court of Appeals’ decision

accomplishes the desired uniformity intended by the Con-

‘1.

7

vention delegates. In the Block case, swpra, the Court of

Appeals for the Fifth Circuit rejected an argument by

plaintiffs almost identical to that made by petitioners. In

Block the plaintiffs contended that charter flights, as dis-

tinguished from regular scheduled commercial flights, were

not covered by the Warsaw Convention because nowhere

in the treaty was the term “charter” referred to. In reject-

ing this argument Judge Wisdom said:

“TIt.ignores the position of a number of Citeja members

and others who assumed the applicability of the War-

saw Convention to the contract of carriage resulting

from voyage charter. . . . It underestimates both the

vision of the men who drafted the convention and the

tenacity with which they held to their objective of cre-

ating uniformity in the area of the carrier’s respon-

sibility to its passengers and shippers.” 386 F.2d at

338.

One of such men was Professor Ambrosini of Italy, a dele-

gate and author of the draft convention submitted to the

conference at Warsaw. The Court below quoted Ambro-

sini’s views (A. 35a, A. 36a) that:

“‘He had always thought that the Warsaw Conven-

tion regulated not only the liability of the carrier, but,

at the same time, that of his servants or agents, and

especially for the simple reason that, in his opinion,

the carrier and his servants or agents were, from the

legal point of view, the same-person,’ ”

“Later Professor Ambrosini expanded on this inter-

pretation:

‘As to the more general question whether the War-

saw Convention provided for the limitation of li-

ability of the servants or agents, his opinion was

that, under the general legislative and legal system,

servants and agents, as the longa manus of their

employer, would enjoy the same situation as the

latter. From the legal point of view, there could not

be a system whereby the carrier would be liable with

limits and the servants and agents without limits.’ ”

555 F.2d at 1084. (Emphasis by Court.)

Throughout this litigation petitioners have pressed for

a literal interpretation of this treaty. Such an approach

has not only been rejected by this Court, but also by a

number of appellate court decisions interpreting the War-

saw Convention (see, A.45a-A.47a). The literal and re-

stricted views contended for by petitioners assume an

intent on the part of the Warsaw delegates that they

wished to plant the seed of the treaty’s own destruction.

Such an intent cannot be allowed. Geofroy v. Riggs, 133

U.S. 258, 270 (1889). The specific words of this treaty

should be given ‘‘a meaning consistent with the genuine

shared expectations of the contracting parties.’’ Maximov

v. United States, 299 F.2d 565, 568 (2d Cir. 1962), aff’d

373 U.S. 49 (1963). Moreover, petitioners’ contention has

the effect of frustrating the delegates’ goal of providing

not only a uniform limited liability, but also a durable and

flexible system of law, Day v. Trans World Airlines, Inc.,

528 F.2d, at 38.

Judge Mansfield also quite properly calls attention to the

‘*judicial nightmare’’ that would ensue if petitioners’ posi-

tion were upheld (A.53a, A.54a). His concern with re-

spect to the problems of applicable law facing the court in

In re Paris Air Crash of March 3, 1974, 399 F.Supp. 732

(C.D.Cal. 1975) are justifiable. The choice of law problem

in that litigation was aimed primarily at the aircraft manu-

facturer’s liability, a liability which is not subject to the

Warsaw Convention’s provisions. One can readily imagine,

therefore, the additional choice of law problems facing a

court in a similar air crash disaster if petitioners’ argu-

ments are adopted. Thus, if the airline’s employees are

- oe

not protected by the treaty’s limitation of liability, addi-

tional problems of applicable law would be injected into

litigation against the employee, e.g., whether ordinary

negligence or willful misconduct must be proved against

the employees ; whether the employees are absolutely liable,

as are their employers, under the Montreal Agreement;

whether the treaty’s jurisdictional-venue provisions in

Article 28(1) take precedence over local rules; whether the

treaty’s two year statute of limitations in Article 29(1)

applies. Other questions concerning the employees’ rela-

tionship with other provisions of the treaty are not too

difficult to imagine. These difficult questions are very real

and, as Judge Mansfield noted (A.54a, A.55a), could very

well arise in the numerous lawsuits arising out of the

recent collision of two Boeing 747 aircraft in the Canary

Islands which killed over 550 persons.*

The fallacy of petitioners’ contentions has clearly been

demonstrated by the decision of the Court of Appeals.

That decision affords a sensible meaning to the treaty’s

pertinent provisions. That decision does not in any way

burden the effective administration or application of its

terms. Indeed, it reinforces our own ties with foreign

nations with regard to international air transportation.

It is the right decision.

* Indeed, similar questions have already been raised in the

District Court in this case, i.e., whether the respondents, corporate

officers of T.W.A., ace legally le for the alleged non-

feasance under New York law, Michaels v. Lipenard Holding Corp.,

11 A.D.2d 12 (1st Dept. 1960), if New York law applies, rather

than the law of New Jersey the place of their residence and where

this action was 0 commenced. 'n view of the fact that

this accident occurred on the high seas, it may be that maritime

law is ap 46 U.S.C. § 761, et seq. Similar issues are

undou lurking in the background.

10

Il.

There Is No Conflict of Decision

Petitioners do not and cannot show that the Court of

Appeals’ decision conflicts with any decision on this issue

rendered by any state court or federal appellate court.

Judge Mansfield’s review of the case law clearly demon-

strates that the within action is the only case to ever

diseuss and thoroughly consider the precise issue of

whether the treaty’s limitation of liability applies to the

airline’s employees (A.44a, A.45a, fn. 11). Pierre v. East-

ern Airlines, Inc., 152 F.Supp. 486 (D.N.J. 1957), the

only other case ever confronted with this same issue,

merely concluded in one short paragraph, and without any

discussion or examination of legislative history, that the

employee was not covered by the limitation. Judge Mans-

field properly gave short shrift to Pierre, as have peti-

tioners in their own petition. Although they contend in

their petition (p. 10) that the Court of Appeals’ decision

in this case is in “direct conflict” with Pierre they make

the same contention with respect to the Stratton case

(Petition, p. 10), notwithstanding Judge Mansfield’s clear

statement as to why Stratton was not applicable (A.44a,

fn. 11).

In addition, the decision of the Court of Appeals does

not conflict with any known decision of any foreign tri-

bunal. In view of the fact that 74 foreign nations have

adopted or adhered to the Hague Protocol, Aeronautical

Statutes and Related Material, pp. 512-514 (Civil Aero-

nautics Board 1974), it is extremely doubtful if there

will ever be a conflicting decision on this issue in view of

Article 25A of that Protocol.

Furthermore, petitioners cannot claim that the decision

of the Court of Appeals will cause them immediate or ir-

reparable injury. The Court of Appeals merely remanded

eee

ll

this case to the District Court with instructions to rein-

state respondents’ Warsaw-Montreal defense. It is still an

open question as to the ultimate outcome of this litigation.

Conceivably, petitioners may, upon proper evidence at the

trial, obtain a jury verdict against respondents based upon

willful misconduct and thereby be in the position to obtain

damages in excess of the treaty’s monetary limits. Or, they

may establish willful misconduct against T.W.A. in their

separate action against that defendant. Judge Pierson

Hall, one of the most experiencea Judges in the handling

of aircraft accident litigation, adopted a similar approach

when faced with the issue of the constitutionality of the

Warsaw Convention. Judge Hall ruled that the determina-

tion of initial threshold questions of fact by the jury could

make it unnecessary to decide that issue. See, Jn re Pago

Pago Air Crash of January 30, 1974, 419 F.Supp. 1158

(C.D. Cal. 1976).

It is also possible that respondents, who performed

their duties for T.W.A. in New York City, might be dis-

missed from this action on the ground that corporate

officers are not liable as a matter of law for the alleged

nonfeasance of these officers under New York law (R.7,

1746). See, Michaels v. Lipenard Holding Corp., 11

A.D.2d 12 (1st Dept. 1960) ; JAemes v. Archibald, 45 A.D.2d

532 (4th Dept. 1974) ; Lute Feed Co., Inc. v. Audet € Com-

pany, Inc., et al., 72 Mise.2d 28 (1972); 2A Warren’s Neglv-

gence, § 3.03, pp. 50-55. Therefore, it clearly appears that

petitioners are claiming nothing more than a possible or

potential impairment of their ability to recover damages

in excess of the treaty’s limits. Such a possibility or con-

tingency should not be sufficient to warrant review by

certiorari. Cf. Communist Party v. Subversive Activities

Control Board, 367 U.S. 1, 71 (1961). The issue in this case

is uniquely narrow, and no amount of strained semantics

with respect to supposed “conflicts” can convert it into one

warranting review by this Court on certiorari.

12

IIL.

There Is No Important Question of Federal Law

While Judge Mansfield did say that this case presented

an important question, he also indicated that the question

was “novel” and was for the first time raised at the federal

appellate level. So far as is known, this precise issue has

never been raised in any state court or foreign tribunal.

It can be reasonably said that in the 40 odd years

since this treaty has been the law in this country, this is

the only case which has ever delved into the specific issue

of whether the carrier’s employees are entitled to the limi-

tation as well as their employer. Judge Mansfield’s dis-

cussion of the cases in footnote 11 of his opinion (A.44a,

A.45a) demonstrates that fact. However, the fact that this

is the only .case is not of the importance to warrant a re-

view by this Court on certiorari. As mentioned above,

there is no conflict on this issue with any of the other cir-

cuits. Nor can there be any conflict with the two District

Court cases referred to by petitioners (petition, p. 8, fn. 6).

The Pago, Pago aircraft accident litigation is set for trial

during the week of October 3, 1977 in the Central District

of California. In preparing for that trial the Court very

recently followed Judge Mansfield’s decision and denied

plaintiffs’ motion to strike the Warsaw defense pleaded

by the airline’s employees. In the other litigation referred

to by petitioners, at JFK International Airport, it is re-

spondents’ understanding that no motions have been made

attacking the Warsaw defense pleaded by the airline’s em-

ployees. Even if such a motion is made it is obvious that

the Eastern District of New York would be bound by the

Second Circuit’s decision in the instant case. Therefore,

there are no decisions pending in aircraft accident litiga-

tion which are in conflict with the Second Circuit’s decision.

It must also be considered that the Court of Appeals’

decision does not leave the law regarding this treaty in an

13

unsatisfactory state. It is consistent with the expectations

of the Warsaw Convention delegate who authored the draft

Convention; it is consistent with the primary aim of the

treaty, as announced in its Preamble, to obtain the ad-

vantages of regulating the liability of the carrier in a

uniform manner; it is consistent with the law of those 74

member nations who have adopted the Hague Protocol, and

its Article 25A; it is consistent with the views expressed

by the Secretary of State which accompanied the Presi-

dent’s letter of transmission of the Convention to the

Senate in 1934 (see A.47a); and it is consistent with the

continued efforts of the United States to improve the bene-

fits accorded to passengers under this Treaty. See, Day

v. Trans World Airlines, Inc., 528 F.2d 31, 36-38 (2d Cir.

1975); see, also, Judge Mansfield’s observations with re-

spect to current efforts in this area, A.47a, A.48a, fn. 12.°

Needless to say, had the Court of Appeals’ decision been

in petitioners’ favor, the law regarding this treaty would

indeed be in a very unsatisfactory state.

In view of the above, it is respectfully submitted that

the petition does not present any ‘‘important’’ question of

federal law that should be decided by the Court. Block v.

Compagnie Nationale Air France, 386 F.2d 323 (5th Cir.

1967), cert. den. 392 U.S. 905, also presented a novel and

important question arising under the Warsaw Convention.

*On July 20, 1977, the Civil Aeronautics Board approved an

agreement to establish a Supplemental Compensation Plan pur-

suant to Article 35A of the Warsaw Convention, as amended by

the Protocols at The Hague, 1955, and Guatemala City, 1971, and

by the Additional Protocol No. 3 of Montreal, 1975. The Board's

order discusses in detail the background, history and purposes of

these amendments and explains the benefits of the amendments

to the passengers and carriers. See, Agreement CAB 25632, Docket

No. 28713, Order 77-7-85. In addition, the Senate Foreign Rela-

tions Committee is scheduled to vote on the advisability of the

Senate ing Additional Protocol No. 3 of Montreal, 1975, dur-

ing the September 26, 1977. If ratified, Protocol No. 3,

which encom the Protocols of Hague and Guatemala, would

replace the Warsaw Convention.

14

The issue in that case was whether a civilian charter flight

was subject to the provisions of the treaty. Judge Wisdom

of the Fifth Circuit said it was. This Court denied cer-

tiorari. Manifestly, there is no important question of

Federal law requiring decision by this Court.

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that this petition for a writ of certiorari should

be denied.

Respectfully submitted,

Joun J. Martin and

Epwarp M. O’Brien

Attorneys for Respondents

Of Counsel

BicHamM Enoiar Jones & Houston

et A A