Petition for Writ of Certiorari — Block v. Compagnie Nationale Air France

LIBRARY

| ono eme Court, U.S.

SUPREME ED

BaTEs Brock, et al., ~~

. Petitioners, . .

versus

CompPpaGNir N Amann Am Fnaxcx,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

_ UNITED STATES COURT OF APPEALS FOR. THE

FIFTH CIRCUIT ;

*

— — —

—— ——— —

*

—— _. . — —

New York, New York 10016.

3 Wr. H. Sonnonar,

HdR M. Dorsey, In.,

HERBERT A. Rincet,

Counsel for Petitioners,

acting on behalf of all

petitioners’ attorneys —

named herein.

TABLE OF CONTENTS —

2

Jurisdiction ELE On eee ro eee ee

Questions Presented e e 2

Treaty Involved ............... W 3

Statement ee 3 3

Reasons for Granting the Writ eee e

Conclusion CF ee 31

TaBLe or AUTHORITIES

Cases: 15 f

Alitalia-Linee Aeree Italiane, S.p.A. v. Lisi, No. 710 9

American Airlines v. Ulen, 186 F. 2d 529 (D. C.

Cir. 1949) // pedo ake ee abekee 10

The Amiable Isabella, 19 U. S. (6 Wheat.) 1 (1821) ..9,10

Bacardi Corporation v. Domenech, $11 U. S. 150

fn)7 ¼ÄPbt!... ß las oo 66 cake « 12

Curtis-Wright Flying Servies, Inc. v. Close, 66 F. 2d

710 (3rd Cir.), cert. denied, 200 U. S. 696 (1933) 13

Factor v. Laubenheimer, 290 U. S. 276 (1983) 8

Haver v. Yaker, 76 (9 Wall.) 32 (1869) a

Kolovrat v. Oregon, 366 U. S. 187 (1961) ....... ae

New Vork Central Railroad Co. v. Lockwood, 84 U. S.

(17 Wall.) 357 (1873) ...... V 13

Noel v. L.A. V., 247 F. 24 677 (2d Cir. 1957), cert.

denied, 355 U. S. 907 (1957 5

Pekelis v. Transcontinental ‘and Western Air, Inc.,

187 F. An OA Cle. eee N 5 0

ii . TABLE OF CONTENTS

| 7 5 Fa

Perkins v. Blg, 307 U. S. 325 (1939) 9,12

Stratton v. Trans Canada Air Lines, 7 Avi. Cas. 17,

724 (Br. Col. S. Ct. 1961): bee „ *

Strother v. Lucas, 37 U. S. (12 Pet) 410 (a8) 12

5 Statutes and Treaties:

Convention for the Unification of Certain. Rules Re-

lating to International Transportation by Air, 49

U. S. Stat. at L. 3000, 3014. 8 3,7

47 U. S. Stat at L. 10. . . 1

40 U. 8. Stat at L. 22ũ .

Books and Freaties:

Ambrosini, Fletamento y Transporte, Aavenactien D>

Argentina, IDAN/9 ee. Aires, 1951) — 16

Coquos, Le Droit Prive International Aerien (Paris

1938) BPN Siege eo eceee rere ee ee „„ „„ „„ 16

Drion, Limitation: of Liability in International Air

Law (1954) FVV 21

Pergler, Judicial Interpretation of International Law .

5 (MacMillan hh 12

nne, Charter, Hire and Interchange of Aircraft. Or

„rede 29

Sundberg, Air Charter ai 15, 16, 24, 25, 29

ee

ö Air Carriers’ Limitation of Limitation of Liability

and Air Passengers’ Accident Compensation,

Peter H. Sand, 28 Journal of Air Law & Com-

1 bbb bbb eee es,

TABLE. or CONTENTS iii

Air Law ‘Conventions and the New States, Renin 7

Mankiewicz, 29 Journal of Air Law & Com-

merce 52 (1983) 3 „ 3

New York Times, January 13, 1968 .

The Warsaw Convention and the Washington Com-

promise, A View from America, Andreas F.

Lowenfield, 10 Journal of the Royal Aeronautical

Society 1061 (1966) ————— 2 22. f 7

Archives Documents: . ; ied :

Archives 579.6L22ĩũẽ7 ... . 17, 18,27

_ Archives 579.6LILA/22/ ........... eat Bes Dyce are ic ®

‘Archives 579.6LIA/60 ............- Rice. 3 2

Archives 579.6LILAJD̃ù )))... 18

Archives 579.6LILA/11%ũ „ e 24

Archives 579.6LIA V1 e

Archives 579.LLAT/ Iiss288s8s8s8s8 24

Archives. 579.6LILA/ 242 . 4

Archives 579.6L1A/339 ........ V

Archives 579.6LILAV34i q 25

Archiven 7 LILA O2 26

Archives 579.6LLA/ a4 * 8

Archives 579.6LIA/13bùũ ii 27

Archives 579.6LIA/ 1655 „ a)

Archives 579.6LIA/1814 .............-200- 6

Archives 579.6L2/83 .. 24

Archives 579.6L 2/3? . 1

Archives 579.6L 2/9 JJC

Archives 579.6L2/52 ........... 8 „

Archives 579.6. 88 22 RER SS Mee

Archives 579.617. .

Archives 579.6 7333. 5

Archives 579.6L2/80 00. 8 „

iv. | TABLE OF CONTENTS

a 3 > page

: CITEJA Documents: gate

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CITEJA Doc. 1999 5 9 205

ITHIA Doe. 32ù T

CITEJA Doc 42 . eee

CITEJA Doc. 44) 8 29

1040 Documents: ä 8

ICAO Doe. 4003 ..... l . . 18,29

ICAO Doe. 6024—LC /i... 29

10A 0 Doe. 7229—LC/133 3. 8

ICAO Doe. AWA ar es iboats aka’ wie,

Miscellaneous: 4 |

Civil Aeronautics Board, 10 CAB 783, 788 (1949) . 13, 14

1966 World Air Transport Statistics, International

Air Transport Association, Montreal, Canada /FL7

17 IATA Inf. Bull. 42 (Hague 1932) 24

State Department Bulletin of Treaty Information

#7 — 33 3⁊ĩ2ß'en Q . s LY, QL

Int

Supreme Court of the Beten States

OCTOBER TERM, 1967

Petitioners, :

. Narionaun Am Franc,

, "Respondent

dé.

*

PETITION FOR A WRIT OF CERTIORARI TO THE.

UNITED STATES COURT OF APPEALS FOR THE.

FIFTH CIRCUIT

Petitioners* pray that a writ of certiorari i issue to review

the judgment of the United States Court of Appeals for the

Fifth Circuit, entered in the above-entitled case on January ;

19, 1968 upon decision e on November 8, 1967.

N N Kas; are: Henry C. Berry; ; Ewing 8. Hum-

phreys; F. C. Terrell; John M. Luty; Ezekiel Samuel Candler; —

Fred H. Sorrow; Ralph J. Barry; Citizens & Southern National

Bank; Trust Co. of Georgia; First National Bank at Winter Park;

Hinton F. Longino; David C. Black; William a Self; Robert

P. Turner, Jr.; Claire W. Morse; Sartain Lanier; enry I. Bow-

den; James T. Anderson ; Thomas G. Moore ; Robert I. Gerson;

William Eaton Merritt; Carroll Young Cargile; Tom-Chris Allen;

Center C. Williamson ; Jake Goldstein; F E. Loomis; Percy H.

' Perkins ; Frank Virgin; First National Bank of Atlanta; Bank of

Fulton National Bank of Georgia; First National Bank

of Georgia and Rosa M. Baskett.

2

„ Cations to Opinions Below

The opinion of. the United States Court of Appeals for

the Fifth Circuit, printed in Appendix C (A. 58a-118a)?, has

not, as of today, been reported. The opinion of the United |

States Distriet Court for the Northern District of Georgia,

Printed i in 2 B (A. rah! is reported i in 229 F.

‘Supp. 801.

, » 3!

a ie 4 Jurisdiction

The decision of the Court of Appeals was rendered on

Nove , 1967 (A. 119a-120a) and judgment entered

on The jurisdiction of this Court is

invoked under 28 Us C., Section wane

1 Does the We Crepes cover charter relation-

ships? | |

. ° > 7 GQ

2 Should a treaty which pe a restricts private

rights be ‘‘broadly construed in accordance with French

civil law principles so as to extend its application or should

it be limited to the intent of its drafters? 0

3. Does ‘the lest that & charter is arranged 20 ax to

resemble typical individual transportation serve to bring

the charter under the Convention when the intent of the

drafters was to place charters outside the ‘mage: of the

2 Convention!

S ˙ 1 Saleen 0

tion, ‘which because it is voluminous, is separately presented. Zu

. . ee, 45

record. erences to exhi petitioners Ww, on

motion for summary judgment will be made bi the letters SIX“

followed by the number. /

0

2 0

3

Treaty Involved

This case raises an issue involving the Warsaw Conven-

tion.“ The full text in the English translation i is — AS

Appendix A. (A. 1a-31a).

7 | * 5 |

Petitioners instituted 45 actions which were consolidated

in the United States District Court for the Northern Dis-

trict of Georgia to recover damages for the wrongful deaths.

of sixty-two passengers in the crash of an airplane owned.

and operated by respondent Air France at Orly Airport,

Paris on June 3, 1962. The destination of the fatal flight

was Atlanta, Georgia (A. 58a). The aircraft had been

chartered by the Atlanta Art Association from the respond-

ent under a charter contract which provided that a Boeing

707 Intercontinental Jet Aircraft ‘ shall be furnished to

charterer’? (Atlanta Art Association) for a flight from

Atlanta to Paris and return at a cost of $36,000 (A: 58a).

Petitioners are citizens of the State of Georgia and re-

spondent is a French corporation with its principal place of

business in France. Jurisdiction of the District Court is

based on diversity of citizenship, 28 U.S.C. § 1332(a) (2).

Respondent Air France answered petitioners’ eomplaints

asserting three defenses, (1) that the flight was governed

by the Warsaw Convention limiting recovery to a maxi-

mum of 68,291.87 for each person killed; (2) that the con-

tract of carriage (as set forth in the Charter Flight Agree-

ment or in the. ticket or in both) incorporated by reference

8 Officially entitled “Convention bans the Unification of Cer-

tain Rules Relating to International Transportation by Air,” signed

tatives of 23 countries on October 12, 1929, adhered to -

by United States October 29, 1934, 49 U. S. Stat. at L 3000-3026,

p. 3014 (1935). | | oe

<a

—

4

the Warsaw limitation; and (3) that the law of France

where the accident occurred governed the case and under

French law the Warsaw limitation was applicable. Peti-

tioners filed a motion for partial summary judgment dis-

missing each of these defenses (R. 184). This motion was -

_ denied by the District Court (A. 32a-57a). The opinion of

the District Court included a certification that the decision

involved a controlling question of law concerning which

there is.substantial ground for difference of opinion and

that an immediate appeal from this decision might

materially advance the termination of the litigation (A.

Sa). Petitioners’ application for leave to appeal pursuant

to 28 U.S.C. § 1292(b) was granted by the Court of Appeals

for the Fifth Circuit on June 5, 1964 (R. 351).

Petitioners contended that the drafters of the Warsaw

Convention did not intend to include charter flights within

the Convention and that the question of chartering was de-

ferred for further study and consideration in a future con-

vention ; that historical evidence demonstrated the drafters’

intention to put the entire chartering question aside as one

too complex and too premature to be considered within the

limited scope of a first convention directed only to the nor-

- mal individual contract of ‘carriage; that the efforts of in-

ri tergovernmental ‘agencies subsequent to the signing of the

Convention in 1929 demonstrated a continued interest in

the question of chartering and that repeated efforts to

formulate a convention, totally aside from the Warsaw

Convention, to deal with chartering, gave rise to the clear

inference that chartering had not been included within’ the

Warsaw Convention.

Petitioners further argued that the conduct of the airlines

in resorting to ticketing procedures for charter flights .

similar to those used in individual non-charter flight was

an effort at artificial compliance with the terms of the Con-

vention as well as a tacit admission by the airline enter-

prise that the Warsaw Convention did not include char-

tering.

5

Petitioners further contended that the drafters of the

Warsaw Convention contemplated only the normal two

party relationship based on a contract of carriage between

the airline and the passenger and that this concern was re-

flected in the language and the structure of the Conven-

tion; that the language and the structure of the Convention

as well as its history show that they intended not to cover

any charter relationships; and that no amount of attempted

artificial compliance by the airline with the appearance of

traditional individual transportation would bring these

charter relationships under the, Convention.

Respondents on the other hand argued that the partie

ular flight in question came within the terms of the conven-

tion; that the history of the Convention did not dem-

onstrate an intention to exclude the entire issue of charter-

ing from the Convention; that the Convention simply re-

quired a two party relationship which existed here, in that

the Atlanta Art Association was either merely an agent

for the members of the Association in negotiating the con-

tract or that the Association was a mere nominal party

which faded into „nothingness after the contract was.

made.

Respondents initially peat that the Convention was

clear and unambiguous and included all international trans-

portation that met the geographical and ticketing require-

ments of the treaty. Later they took the position that

cCharters wherein the charterer sold the space which he

had obtained on the aircraft, which were referred to below

as European“ Pe charters, were not included i in the Con-

vention.

The Court of 8 4 the District Court in a

two to one decision, with Judge Jones dissenting. The

majority reasoned-that the Warsaw. Convention should be

broadly construed to give it uniform application in accord-

ance with the principles of French civil law (A. 68a-69a).

Under this bfoad l the court * that

6

some charters were within the scope of the Convention.

The. court reasoned that the nature of the relationship con-

templated by the Convention between the operator and the

. passenger should be measured by civil law standards, and

by civil law standards the requisite relationship existed in

this case (A. 69a-77a).:

. Turning to the history of the Convention the court « con-

cluded that chartering was within the Convention, but the

drafters left out of the Convention the determination of

who the carrier“ was in a charter relationship (A. 90a-

105a). In examining the history of the Convention the

court suggested and perhaps even concluded. that Euro-

pean type charters were not within the Convention but the

charter in question was (A. 101a).

Having thus resolved the issue of the applicability of

the Warsaw Convention the majority of the court did not

consider the other defenses of French law and limitation

by contract.

Judge Jones, in dicccnting, first indicated that he would

strike the defenses relating to French law and contract

on grounds of public policy and choice of law. Turning

to the Warsaw Convention defense he indicated his dis-

agreement with the broad construction approach of the

majority. He said that where, as here, the meaning of

a treaty depends on construction, the meaning adopted

should be that which is least restrictive of the rights of

individuals and that which is consistent with a generally

prevailing rule of public policy rather than one which

should override it. He concluded that a treaty is to be

construed in the light of the conditions and circumstances‘

existing at the time of its drafting and they were such

ng to make it improbable that charter flights were within

the contemplation of those wes, made the treety”” (A. 116a-

a

7

_ Reasofis for Granting the Writ

1. This is an important question under an important

treaty.

The issue of whether charters are within the Warsaw

Convention is one of international importance. The Con-

| vention has been adhered to by more than ninety nations.“

| Its importance to the rights of American citizens is in-

‘dicated by the fact that aout half of the international pas-

| senger air travel is done by United States citizens.*

Air charters, the subject of this suit, constitute a-large

segment of international air travel. For example, over

ten per cent of all air passengers traveling over the

world’s busiest travel route, the North Atlantic, fly on

charter flights.“ This is more than the total number of pas-

sengers carried by ships over the same route.“ The pros-

pect of international charter flying enlarging dramatically

awaits the outcome of this Court’s decision on the power

of the Civil Aeronautics Board to authorize »

air carriers to carry inclusive tour charters = —

——

. * Aig. — of Liability pay Air. pena

Accident Compensation under the Warsaw Convention, an article

in 28 Journal of Air Law & Commerce 260. (1961-62), Peter H.

Sand, the author, said The Warsaw Convention’, of 1929 is today

2 most widely ‘accepted treaty on international commercial law.”

vet 3 (p. 260) At that time the Convention was in force in 57 states; as

of mid 1967, it was in force in 93 states. ö

hie Warsaw Convention and the Washington Compromise,

View from America, Andreas F. Lowenfeld, former!

Adviser, U. S. t of State, 10 Journal of ‘te Revel Royal —

nautical Society 1061 (1966).

* 1966 World Air Transport Statistics, International Air Trans-

ie port Association, Montreal, ‘Canada, In 1966, the total number of

passenger across the North Atlantic i in chartered aircraft

operated. iy meee of IA. T. A. was 502,896.

New York Times, January 13, 1968. Article based on the

1966 World Air Transport Statistics and statistics supplied by the

Trans-Atlantic Passenger’ Steamship Conference.

No. 800 World Airways v. Pan American World Airways I

949 Civil Aeronautics Board v. Pan American World ee No.

. Travel Agents v. Pan American World

rways

*

8

„ The case was improperly decided below.

ph court below took over two and a half years to decide

that the Convention applied to charter flights, and it did

so by a divided vote. Cireuit Judge Jones, dissenting, ex-

pressly concluded that the Convention does not apply under

a contract of carriage on a voyage charter dart (A.116a-

118a). f

The case is admittedly one of first impression and not

' surprisingly, since the amount of relevant historical mate-

rial presented was so imposing. This case itself. consists

of forty-five consolidated cases involving claims for wrong

ful death of sixty-two passengers.

Nevertheless, abandoning, tenets of treaty construction

well accepted and frequently propounded by this Court, the |

‘court below announced and followed ‘‘the primacy. of the

French legal system’”’, which, admittedly, has a doctrinal .

basis different from that of United States law (A. 69a), to

give ‘‘a broad construction’’ to the Warsaw Convention.

>» Without authorization in the treaty itself, or in any

decision of this or any other court, and citing only a

Swedish author who was concerned with the meaning of

words rather than concepts of broad or strict construction

of treaties, the court below said:

. “The binding meaning of the terms is the French

legal meaning. ‘The principle of the primacy of the

French legal system thus means a harmonizing con-

struction of the Convention.’ This principle should not

be carried to extremes, but ‘ lu] niformity may be

maintained without many futile disputes as to whether,

why, and when resort to the teachings in Paris should

be made.’ The necessity for maintaining uniformity, =

even when the Convention is applied in a country,

such as the United States, having a doctrinal basis

for its legal system different from civilian systems,

compels a broad construction of the Convention.“

(A. 69a)

— —

f 9

Then, applying this “broad construction”, the * be-

low swept aside the plain impact of the Convention's his-

tory and the explicit intent of its drafters, and applied

the Convention to charter relationships. Instead of con-

sidering whether the drafters of the Warsaw Convention

intended to cover charter flights the court below exaniined

the particular means employed by respondent, ineluding

the delivery of a standard form ticket, to ereate the ap-

pearance of a regular passenger contract of carriage. The

court thereby abandoned the test of intent in favor of a

test of artificial compliance. The court below added to

the treaty what the drafters had taken out.

3. This Court i is currently examining this treaty.

This Court already has before it a significant question of .

interpretation of the Warsaw Convention involving the

same form ticket as was given by the airline herein to its

passengers in an effort to demonstrate compliance with the

_ ticketing’ requirements of the treaty, so Aeree ;

Italiane, S. p. A. v. Lisi, No. 70.

While thus considering Lisi the court should also con-

sider the parallel question of whether charter flights, which

now constitute a significant part of international aviation

come avithin the Cenvention at oe.

4. The Court belie has abandoned the tradtional test

of treaty renin

a. The proper test is legislative intent. |

This Court has held that treaties should be construed to

give effect to the intent of the drafters, Factor v. Lauben-

heimer, 290 U. S. 276 (1933); Perkins v. ＋ te. U. S. 325,

337 (1939); The — Isabella, 19 U. S. (6 Wheat.) 1

(1821). :

In keeping with this principle, the courts, when in-

terpreting the Warsaw Convention have turned to its his-

10 f

tory 10 ascertain this intent. American Airlines v. Ulen,

186 F. 2d 529 (D. C. Cir. 1949); Pekelis v. Transcontinental

and Western Air, Inc., 187 F. 2d 122 (2d Cir. 1950). uf

b. Fhe de n e @ inne Gelbe tite the

The Warsaw Convention does not mention charter re-

lationships or charter flights, or charter We or

| charterers.

The historical material demonstrates a 4 de-

sign on the part of the drafters, to leave the question of

charters out of the Warsaw Convention, and to study it

later with a view toward incorporation in a subsequent

convention.

The court below has now, through “broad”? construc-

tion, inserted a provision which would bring charter rela-

tionships into the Convention.

In doing so the court violated Mr. Justice Story’s ad-

monition in The Amiable Isabella, 19 U. S. (6 Wheat.) 1

(1821) : Ene EO Lan NEES e ; :

In the first place, this Court does not possess an?

treaty- making power. That power belongs by the con-

Stitution to another department of the Government;

and to alter, amend, or add to any treaty, by inserting

any clause, whether small or great, important’ or triv-

ial, would be on our part a usurpation of power, and

not an exercise of judicial functions. It would be to

make, and not to ‘construe a treaty. Neither can this

Court supply a casus omissus in a treaty, any more

"2 thant ina a 0 (Emphasis supplied.) Id. at 71.

11

e. This is prioate lw treaty which restricts individual

rights. 1

The Warsaw Convention affeets ite the ne and ne

sponsibilities of private individuals. Private law conven-

tions, such'as Warsaw, are basically different from public

law conventions. -<

As Renih Mankiewicz, of the Legal Bureau of ICAO 5 lise’ |

out in an article erititled “Air Law Conventions And The New

States”, 29 J. Air. L. & Com. 52, 62 (1963) states:

he only obligation which the former (a private ‘law con-

vention) im on a contracting state is to incorporate the

substantive law rules of the convention into its own national

law, either by | merely — gam — the convention, or by enacting

additional legislation when Noy ag by the constitutional law

of the state concerned or by 3 itself. Once this

obligation i is complied with, there remains no further interna-

tional duty for contracting state arising out of a private

law convention except to denounce the latter in the proper way

if and when it is desired to modify or amend any national law

CC xr alestironeedent, alllentions $0 do,

or permanent to

not to do, or to tolerate, certain acts during the fifetifne of

the convention.”

_ Public international air treaties include The Pan American Con-

vention on Commercial Aviation (47 U. S. SG BET TSK) ae

The Sanitary Aerial Navigation ¢ (49 U. S. Stat. at L.

3279) which 8 upon the United States Government certain

continui tions and responsibilities. In the Warsaw Conven-

tion the | ae Te Center pratt Cen

N *

12

The distinction between public and private treaties has

been recognized by this Court in Haver v. Faker, 76 U. S.

(9 Wall.) 32, 34 (1869). ö

The courts have occasiqnally interpreted public treaties

involving continuing obligations on the part of the con-

tracting government ‘‘liberally’’, see Factor v. Lauben-

heimer, supra; and Bacardi Corporation v. Domenech, 311

U. S. 150 (1940). However, in private rights treaties, the

integrity and good faith of the national government are

not involved and a different situation is presented.

. “This Court, in the past, has refused to presume that a

treaty intended to abrogate or modify rights unless the

intent to do so is unmistakably indicated by direct and

unambiguous language. Perkins v. Elg, 307 U. S. 325, 327

(1939); Strother v. Lucas, 37 U. S. (12 Pet.) 410 (1938).

In Strother v. Lucas, this Court said:

No construction of a treaty, which would impair that

security to private property, which the laws and usages —

of nations would without express stipulation have con-

ferred, would seem to be admissible further than its

positive words require.“ Id. at 438. |

10 This Court said: | : :

-“It is undoubtedly true, as a principle of international law,

that, as respects the rights of either government under it, a

treaty is considered as concluded and binding from the date

of its signature. In this regard the exchange of ratifications

has a retroactive effect, confirming the treaty from its date.

But a different rule prevails where the treaty operates on

individual rights. The principle of relation does not apply to

rights of this character, which were vested before the treaty

was ratified.’ In so far as it affects them, it is not considered.

as concluded until there is an exchange of ratifications ...” -

(Emphasis supplied.) See also Charles Pergler, Judicial In-

terpretation of International Law 13 (MacMillian Co., 1928).

— —

13

However worthy the intent of the drafters of the Warsaw _

Convention was and however well-meaning the intentions

of our State Department and President when they recom-

mended adherence, the Convention has turned out to be

disastrous to the rights of American citizens. The Conven-

_tion accomplishes nothing for them that they do not have

anyway under the now accepted rule of res ipsa loquitur.

It has even been held not to create a right of action, Noel

v. L.A.V., 247 F. 2d 677 (2d Cir. 1957), cert. den., 355 U. S.

907 (1957 „ so that it does not even supply the arguable

need for a right of action when an accident has happened

in a place with no death law or obscure death law, Its

limitation of damages for death of 88,300 is astonishing

and ungonscionable.

Carrier - imposed limitations of e violate the pub-

lie policy of most states of the United States, and, indeed

were held to violate federal public policy; New York Cen-

‘tral Railroad Oo. v. Lockwood, 84 U. S. (17 Wall.) 357

(1873); Curtis-Wright Flying Service, Inc. v. Glose, 66

F. 2d 710 (3rd Cir. 1933), cert. den. 290 U. S. 696 (1933)

The damages limitation of the Warsaw Convention, by its

terms, only fifects carriers, so that in a very real sense

its obnoxious character falls squarely within the condem-

nation of numerous American public policy cases.

That the Warsaw Convention, with its arbitrary limita-

tion on the common carrier’s liability for negligence, rep-

resents a radical departure from American law and public

policy was recognized in 1948 by the Civil Aeronautics

Board which declared that the Convention was to be strictly

construed and extended only by formal international agree-

ment.

The C. A. B. said:

„The rule establishing the invalidity of e

which attempt to abrogate or limit the liability of a

common carrier through the negligence of the carrier

14

is well established in the United States, „ (citing

suthorities)*! 10 CAB 783 er . yee |

The Board further stated:

„To the extent that the proposed conditions of car-

riage would place a limit on liability in cases of non-

Warsaw transportation, they represent a step away

from the 9888 policy of 4252 country.“ 10 CAB 788

(41949).

The British Columbia Supreme Court, in 1961, held that

the Warsaw Convention and the Carriage by Air Act

(1952) R. S. C. Ch. 45, which ratified the Convention on be-

half of Canada, were not dissimiliar to a taxation statute’’

and ‘‘were to be strictly construed, rather than Jiberally’’,

and therefore held the Convention not applicablé, Stratton

v. Trans Senn, Air Lines, 7 Avi. Cas. 17,724 (Br. Col. S.

Ct. 1961).

That our courts should give a strict construction to

treaties violative of private rights and inconsonant with

our public policy was recognized by Cireuit Judge Jones

in his dissent below (A. 118a):

If alternative meanings can be placed upon a trea-

ty, the one adopted should, if possible, be that which is

least restrictive of the rights of individuals, Universal

Adjustment Corporation v. Midland Bank, supra.

The ‘rule that invalidates contract provisions which

restrict che rights of passengers to recover for per-

sonal injuries is one generally prevailing in the United

States. 13 C. J. S. 1182, Carriers § 620. The rule is

founded upon public policy. Aetna Casualty d Sure-

ty. Co. ve ). Prather, 00 Se. App. 10%, 2 8. E. e

5 8 The. views expressed by the CAB, the national re-

e in this country, are entitled to care-

consideration by the courts. Ke v. Oregon, 3⁵⁶ U. S.

“>

156

Philippine Air Lines, Inc. v. Teras Engineering &

Manufacturing Co., Inc., Sth Cir. 1950, 181 F. 2d 923.

Where the meaning of a treaty depends upon con-

‘struction, as I think is the case here, the meaning

adopted should be that which is consistent with a gen-

erally prevailing rule of public pallor: rather thea one

which should override it.“ ij

d. The 8 of our own standards of treaty

nee

In articulating vethe Nhüner of the French u legal tem“

and in finding thab this compels a broad construction of

the Convention“ the majority of the court below drew at-

tention to Article 36 (A. 22a) of the Convention (A. 69a).

But Article 36 only refers to the language i in which the

original was to be filed! Nowhere in the Convention is

there a provision to the effect that principles of treaty

interpretation shall be those followed-by French law. No-

where is there a suggestion that an American court could

abdicate its concern for legislative intent and restriction

of private rights in favor of the ‘‘broad’’ or “iberal””

approach prescribed by French law.”

Yet on that basis the court below downgraded the strong

evidence of the drafters’ intent (e. g. Beaumont said cer-

‘tain delegates to the Warsaw Conference said ‘‘the Gov-

ernment draftsmen responsible for the Warsaw Convention

did not contemplate charter contracts coming within the

provisions of the Convention at all . . .) (A. 94a) in favor

of eee opinions (including Beaumont’s) that the re- g

1 Even Se ‘the S ie relied on by the tal i

16

lationship between the } passengers and Air France ‘should

come within the Warsaw Convention hx Na, 105a-110a)."

3 The majority opinion below recognizes ‘that there were three

=; of nee relationships N atte herein 4 *

single, passenger tionship contemp the

drafters of the Convention (A. 70a-80a). But then the majority

shifting from legislative intent to broad construction says:

“The contractual relationship established between Air France

and the and evidenced by the individual issuance of

these the description of the relationship required

by the Warsaw Convention.” (A. 80a)

Similarly, the majority cites the conclusions of several commen-

tators. Examination of their statements and conclusions reveals

by them that the drafters of the Convention intended

not to cover charters.

For example, Abrosini (A. 106a) said that the Brazilian pro-

posal at the arsaw Conference was designed “In order to know

if the Convention would be able to be applicable in the case of

.” Fletamento Y Transporte, Aeronautica Argentina,

IDAN 5 3 (Buenas Aires, 1951), cited by Sundberg, Air Char-

ter, 201 (1961).

author of Le Droit Prive International Aerien (Paris,

1938) is another commentator relied on by the Bü below (A.

109-110 a). Vet in his book Coquoz said:

“On the other hand, the acts of CI TEM and of the Con-

ference reveal to us clearly enough that the Convention au-

thors did not intend to regulate chartering.” (Id. at 93) ä

It is true that Coquoz went on to say: ö

This does not 28 the Convention from being Wan

if the text permits (Id. at 93)

But this simply illustrates how a French lawyer using a civil

a

approach might disregard legislative intent in drafting a treaty

yet that treaty to a given set of circumstances. Whereas

of treaty interpretation under our law is clearly the

intent aw is far tor ee See, for_cxample Arte 1 o

sivil la See, for example, Article I of

the Swiss . Code, en Mehren ‘The Civil Low System, 828,

829 (1957), Ballot Man, Le Centenaire du Code. Civil (900)

at

cited in Von Mehren, ren, The Civil La System 828, 5

~

—

8

Ne

—

—

17

8. The legislative history of the Warsaw Convention

as well as its language, makes it clear that the drafters

did not intend 0 cover any charter e in-

cluding the type involved herein.

A wealth of historical data is available and will be pre-

- sented to the Court, if the writ. of ‘certiorari, is granted,

' demonstrating that the drafters of the Convention did not

- intend to cover. any charter flights including voyage charter

flights of the type involved herein. ‘We recognize that this

is not the place to spell out this historical material, but a

few highlights are appropriate to demonstrate that the«

majority of the court below was wrong in its conclusion

„that the history of the Convention, before and after War-

saw, shows that the Warsaw Convention applies to a voyage

charter flight“ (A. 105a), and that the conclusion of Judge

Jones, dissenting, was correct that it is improbable that

charter flights were within the contemplation of those who

made the treaty’’ (A..117a).

A. nen emma

tion before and after the signing of the Convention.

The peti work for the Warsaw Convention. was

done by A (officially translated as ‘‘International

Technical Committee of Aerial Legal Experts“) “ CITEJA |

was created by the First International Conference on Pri-

vate Air Law in Paris, in 1925. The work of CITEJA |

resulted in the Warsaw Conference of 1929, which cr@ated |

the Warsaw ee but theavork of CITEJA continued

until 1946. 5 b

1 National Archives, 8 of State Decimal File 1910-29,

File No. 579.6L1/24. Hereafter, such files will be referred to in

the style: “Archives 579.6L1/24”.. All such files are from the

general records of the United States Department of State and an

be examined 1 in the National Archives; ‘Washington, D. *

18

The 1925 Paris Conference prepared a preliminary draft

of a Convention on the Liability of Air Carriers. It also

assigned to CITEJA, for study, the question of Location

d’aeronéf’’.* As pointed out by the court below this term

included chartering of aircraft (A. 63a). |

In 1926 Location des -aeronéf’”? was assigned to

CITEJA’s Seeond Commission (committee). At a meet-

ing of this Commission, before the Warsaw Conference in

May, 1929, DeVos, the Reporter in charge of drafting a

proposed convention indicated that chartering of aircraft

was not of practical interest for an international conven-

tion; that it might become of interest in the future; and

that it might be advisable to appoint a reporter on that

subject.” The President of this Commission, Arendt, con-

cluded that the question of hiring of aircraft . be

examined subsequently.’

Location des aeronéf’’ remained on the agenda of the

Second Commission beyond the Warsaw Conference,

through 1946. CITEJA, itself considered the charter

question again in 1932, three years after the Warsaw Con-

vention had been signed. N

The continued study of the question after the Warsaw

Conference had ended is evidence that the question of

chartering was not settled i in the Convention.

B. The Brasilien propesal.

At the Warsaw Conference itself, in 1929, the question

of dealing with chartering was specifically raised and was

_ specifically deferred for later consideration in another

convention. It was raised in the form of a * made

5 Archives 579.6L1A/22%..

V Archives 579.6L1/24. 3

u Archives 579.6L1A/84, CITEJA Document 4, pages 45.

Vd. page ‘a

"18 1CAO Document 4003, pp. 67-75.

-

by the Brazilian delegation, and it was one of four pro-

posed amendments singled out and specified in the ‘‘Final

- Protocol’’ of the Conference, a formal mene signed by

all of the delegates present.”

The Brazilian delegation pointed out that the draft of

the Convention used the word carrier which was clear

in transportation afforded an individual passenger in ac-

‘ cordance with the normal contract of carriage, but which

in a three-party charter relationship was ambiguous, The

Brazilians pointed ‘out that with charter relationships

under some systems of-law the owner would be the carrier

and under other systems of law the charterer would be |

_ considered the carrier.

To cover charters and eliminate the ambiguity the Bra-

zilians suggested a clause defining the word carrier“ to

include both owner and charterer in a charter situation.”

The delegates, including DeVos, were not ready to extend

the coverage of the Convention to charter relationships.

They wanted to limit themselves to certain unification .

_ Tules’’; to taking a first step. This is apparent from the

floor discussion and the specific terms of the Final Proto-

col, which stated ‘‘that the Warsaw Convention only regu-

lates certain questions, : . . (that international air

navigation is raising many other questions which it would

be desirable to regulate by international understanding;

. “that the Warsaw Conference, having taken cogni-

‘sanee of the Brazilian proposal, believing that the question

should not be settled * 1 convention, refers the 12 8

r to CITES A. . :

a ele, of the Conference, English meu

SIX 6, page 401.

SIX 6, page 241.

&F pages 216-217 ; State pn Bulletin of Treaty

a Iten Hos $7 Archives N pages 28.29.

* Ibid.

20.

The Final Protocol, which is the best possible proof of

legislative intent, in fact does no more than echo the

Minutes of the Conference itself. Speaking from the floor

of the. Conference Giannini, the Chief of the Italian Dele-

gation, and the Chairman of both the Preparstory Com-

mission and the Drafting Committee, said:

With regard to this proposal from Brazil, the Com-

mittee was of the opinion that this problem does not

fall under this convention. the codification of pri-

vate air law takes place progressively, we are forced

to anticipate somewhat and we have contemplated cer-

tain problems which affect other conventions. How-

ever, as in this case it was not necessary to define the

. ‘transporteur’ (carrier), . ., we have submitted his

proposal to the CITEJA so that it be taken into con-

sideration. (Emphasis supplied. *

Giannini's statement that this problem does not fall

under this Convention . . . in this case it was not necessary

to ‘define the carrier’’ can only mean that in the case of the

normal, non-charter relationship there is no question as

to the identity of the ‘‘carrier’’. This shows that the Con-

vention is limited to that relationship,

DeVos, who is called the primary: author of the Conven-

tion by the majority of the court below (A. 93a), referred

to the Brazilian proposal on the floor of the Conference.

As the floor leader, attempting to push through the legis-

lation with the minimum of changes, he thanked the

delegates who had presented amendments and who had

withdrawn them ‘‘not because they were not justified, but

because they were outside the framework of the Conven-

tion which limits itself to certain unification rules.

He added certain gy oe appear to us to be justified

and very reasonable. . . but mostly for the future work of

eee translations contained in SIX 4, p. 2, nd SIX 6

p. N

* SIX 6, p. 237. ̃

21

the CITEJA. Thus, it was the case for some of the guet-

ments presented by the Brazilian delegation, ote

“Ambrosini, Coquoz, and Drior, all of whom were. cited

by the majority of the court below, all agreed that the

purpose. of the Brazilian proposal was to include n

within the Warsaw Convention.“

Even apart from its specific an to the Brasilian

proposal the Final Protocol indicates that the Convention

deals only with non-charter transportation. Section B'

of the Final Protocol recognized that there were other

types of air transportation, which certainly included char-

ter transportation, that should be dealt with in other con-

ventions. Otherwise ‘‘B’’ has no meaning. It provided :*’

—

B. The Conference, considering the importance from

an international standpoint of uniform regulations

for transportations by air of e kind,

Recommends

) that the International Technical Committee of Aerial

Legal Experts prepare a preliminary draft conven-

tion on the subject as soon as possible.“

Id. at 238. The defendant below, suggested that in re secting

the Brazilian proposal and in deferring the question for further

consideration by CITEJA in another convention, the conference

intended to * questions relating to some types of charters but

2 the type of voyage charter involved herein. The defendant

has ignored the fact that the Brazilian proposal was directed

primafily, if not entirely, at voyage charters. Time charters and

hull charters could not come within the Convention anyway,

by virtue of Article 1(2) which required a contract of. carriage

specifying places of departure, destination, and stops that meet

certain geographical requirements. (Vaicoussis, a paper on the

liability of the aircraft operator and charterer 12 n. 7 [McGill

University 1952], contained in SIX 11.) The Brazilian

would not have brought them under the Warsaw Convention. It

would have brought voyage charters under the Warsaw Convention.

cee n. 13, supra, and Drion, Limitation of Liability in In-

ternational Air Law 133 (1954).

* Archives 579.6L2/73, pp. 28-29 containing State 88

1929. of Treaty Information No. 7. Sepptement of October 12,

4 |

C. The re- to the Warsaw Conference intended to

take a limited step.

| The Minutes of the Warsaw ‘Conference ‘emphasize. and

re-emphasize the intention of the delegates to take a lim-

ited first step toward what they thought would be the

progressive elaboration of a comprehensive code of pri-

vate international air law“

Lutostanski, the President of the Conference, in his

opening speech said :*

„The questions contained in the draft we have before

us are but the beginning, the first fruit of the program

undertaken in Paris in 1925, outlined and then ex-

ecuted by the CITEJA.’’ * * *.‘‘Your President will

be happy if the work of this Warsaw Conference be-

comes the springboard for a series of conventions on

private airlaw.. .”’ — @

DeVos, the Rapporteur of the draft convention in his

report to the Conference asked the delegates to:“ |

. hasten the ratification of this first international

15 which shall be the beginning of the Air Code.’”

Giannini, i in his initial report to the Conference, a as Chair-

man of the Preparatory Commission said:“

6. „ „ WO are making © first effort sad wo must be

happy to do it. n

S 6, pp. 11-12.

„SN 6, p. 26

„SX 6, pp. 38-39.

23

He added :. ,

[Wie shall propose the folowing title for r the Con-

vention:

* Convention relating to certain rules on the unifica-

tion on private air law.’

the Se ies the parties character of ts

Convention. . as.

In connection with the formulation of the Final Protocol,

= the Delegate of on e the following

Wish: |

“The Conference;

‘Considering that the Warsaw Convention 1 settles ,

Certain difficulties relating to air transportation and 6

that international air transportation raises many other

questions which should be settled by international

agreement.

Wishes: 8

‘That, through the French i Soca which took the

initiative of calling these Conferences, new conferences 2

should be called eee to pursue this task of

unification..

When the United States édherea to y the Warsaw Conven-

tion in 1934 it knew of the Brazilian proposal, the action

taken on it, and the limited scope of the Warsaw Conven-

tion.

The United States had - two qualified 88 at the

wine Conference. Furthermore, multiple copies of the

detailed Conference Minutes, containing the Brazilian Pro-

posal and the discussion of it on the floor were ‘received

by the State Department and widely distributed ‘among

its divisions and other sm of our ie eal

—

—

————

SIX 6, p. WS. ;

28 6, p. 312.

#8 See, 579612/S2, 6B, 78, and 80

24

In addition, numerous copies * the Final Protocol were

received both in separate form and annexed to n

publications on ‘the Warsaw Convention.” :

In addition there is a wealth of evidence from State

Department files demonstrating our Government’s belief

that the Warsaw Convention was but the first of what were

to be additional conventions on air law. These include

Presidential messages to Congress as well as letters from

State Department officials or gah the coger of

State.“ 8 0

D. The IATA Questionnaire

r Beaumont, the representative of the Interna-

Mas Air Traffic Association at the Warsaw Confer-

ence, and a member of its Legal Committee, in 1932 pre-

sented a report to IATA.“

Beaumont had attempted to review with a e

tive group of delegates to the Warsaw Conference the

Wee of whether the Conference had intended to cover

2

e

% See, Archives 579.6L2/36, 37, and 39.

s See, Archives 579.6L1A/11414, containing Senate Document.

855 7ist Congress, 2d Sess. (1930); Archives 579.6L1A/148,

No. 1404, 7ist Congress, 3d Sess. (1931); Archives 579.-

7 SLA D2 H. R. No. 800, 72nd Cong. Ist Sess. (1932) ;

Archives 579.6L1A/1

Thi delegates to the Wage Conference stated that as Bret

national air navigation is raising many other questions which it

Pr

they recommended that other Conferences be called to continue

the work of unification of private aerial law. When it is con-

_ sidered. mat chere will probably. be separate conventions on

various other phases of private aerial law, the of the

work undertaken by the International Technical ittee of

Aerial Legal Experts will be readily appreciated.” Id. at 3.

"17 IATA Inf. Bull. 42 (Hague 1932). See the report of this =

eee ee eee 201. sree y 1 1 s

2 —

25

charters in the Warsaw Convention, His report indicates

that the drafters did not contemplate, charters coming

within the provisions of the Convention at all. The report

says, in part:

The replies received to these enquiries in the first

instance seemed to indicate that the Government drafts-

men responsible for the Warsaw Convention did not

contemplate charter contracts coming within the pro-

visions of the Convention at all.

IATA, reflecting Beaumont’s observations, evinced con-

siderable concern about whether or not the Warsaw Con-

‘vention covered charter flights, and, particularly, voyage

charters. |

In a questionnaire directed to CITEJA,* IATA ex-

pressed its belief that the Warsaw Convention had not

„taken into consideration“ charters or hire of aircraft,

raised questions about the legal relationships involved in

these contracts, and asked CITEJA ‘‘whether it would not

be desirable to prepare a special international convention

on contracts of charter and lease of aircraft, in order

to settle and make clear the questions giving rise to doubt

.. . (particularly in the cases mentioned in the above

questionnaire)’’ (Emphasis supplied.) e et

In his Report to IATA to which the questionnaire was

attached Beaumont said: 2 3

„The position is this: the Convention of Warsaw has

not taken into consideration special charters or hiring

of aircraft to people under various circumstances and

therefore even my valued colleagues . . and all the

, Quoted from Sundberg, Air Charter, n. 59, p. 208.

Archives 579.6L1A/339, 344.

government lawyers whom’ we 1 consulted did not

really know what the legal position is concerning these

contracts. (Emphasis supplied.)

Thus the airline themselves and their expert, Beaumont,

who attended the w Convention as their representa-

tive, knew that the Warsaw Convention had not taken

charters into consideration.

The majority of the court below takes the view „ that the

‘*post-Warsaw meetings show a concern, similar to that

expressed by the Brazilian delegation, as to whether char-

terers, not charter flights are covered by the convention”’

(A. 93a). This is plainly rebutted by the IATA question-

naire and its Decision #8, and the great concern indicated

therein that the whole field of chartering was not dealt

with in the Convention. The airlines’ position in charter

relationships such as the one at bar was as owner, and not

as charterer, and the urgent necessity referred to re-

lated to their liability, because of a fear that charter rela-

tionships were not covered at all.“

— *

?

.

On 8 27 and 28, 1933, only six months before Presi-

dent Roosevelt sent t Warsaw Convention to the Senate for advice

and consent to adherenicey.the International Air Traffic Association

sort: Penden ant aati te fluorine Sar 2

Decision #+8.—The — Convention and | special er .

contracts. In order to cure the difficulties experienced by air

—— — ok nl

— with this matter.” (Emphasis

supplied.) (Archives 579.6L1A/444, pp. 18-19.)

. “In making that distinction the court below also overlooked many

statements in the historical record which clearly indicate

—

‘ ©)

' 27

2 | 5

E. Cogliclo’s 8 a 25% eg

The great concern of the airlines that charter relation-

ships were not covered by the Warsaw Convention was

referred in- 1933 to CITEJA for study. The matter was

referred to Professor Cogliolo of Italy who was appointed

Reporter on the charter question, for CITEJA’s Second

Commission. Cogliolo had been active in CITEJA from

its very beginning,“

Cogliolo carefully considered the IATA sii and ;

the entire subject of charters. He filed two reports, one in

1936 and one in 1937, which leave no doubt whatsoever but

that in his view, as the responsible Reporter on the ques-

_ tion, voyage charter flights, of the kind involved herein

were not covered by the: Warsaw Convention.

The majority opinion of the court below *

Cogliolo and took a very narrow and selective view of the

plain import of his written reports. Indeed the court

relied on a section of his report that did not relate at all

to a. passenger voyage charter (A. 99a-100a), but related

to a shipper of goods who instead of shipping in the usual

way rented a given space in the aircraft. The Warsaw

Convention covers the shipment of goods as well as the

transportation of passengers and in this situation, which is

not a charter at all, and which bears no resemblance to the

‘situation at bar, Cogliolo concluded that the Convention

applies. But in the charter situation, including the voyage

charter situation, Cogliolo concluded, clearly and specifi-

cally, that ‘‘the Warsaw Convention cannot be eran

unless it was to be amended.“

It is important to note that the statements made by

DeVos, in the course of these CITEJA A sug-

* Archives 579.6L1/24; 579.6L1A/60. |

Archives 579.6L1A/1302 ; CITEJA Doc, 328, May 1937; SIX

12. See the Opinion of the maj of the court, below, where in

on) 56 the court quotes some of the relevant sections (A. 100a-

a

28

gesting that the Warsaw — did apply to charters,

which were relied upon by the court below, were rejected

by Cogliolo in his report on the question (A. 98a-100a).

As pointed out by the majority of the court below the

first five conclusions in Cogliolo’s 1937 report, which clearly

demonstrate that the Warsaw Convention does not apply

to charters, impelled the defendant to contend that they

related only to a type of voyage charter known in Europe,

and referred to by the court as European charters where

the charterer is not the passenger but may issue tickets to

third parties in his own name, i.e. the charterer contracts

with the passengers to transport them’’ (A. 101a).

It is true that the defendant, below, did so argue, and did

attempt to demonstrate a distinction between the Eu-

ropean charters’’ and the type it said was involved herein.

In doing so the defendant, of course, implicitly admitted

that the Warsaw Convention did not apply to these Eu-

ropean charters”’ and thus that it did not apply to all in-

ternational transportation”’, as it had originally contended.

The point is interesting for several reasons. First the

so-called European charter may be extensively used in

the United States if this Court upholds recent Civil Aero-

nautics Board orders. But more important the court below,

demonstrated its failure to apply the proper standard of

treaty interpretation—the intent of the drafters. The

drafters chose not to get involved in distinctions between

types of charters, but to defer such questions for a later

convention. Finally the position of the defendant in the

court below demonstrates that to sustain the application of

the Warsaw Convention to a voyage charter of the type

involved herein a court must construe the charterer, in this

case the Atlanta Art Association, into a position of non-

existence. .

. ‘ 29

F. The six forts to draft « new convention relating to

charters. |

Following the deliberations of CITEJA’s Second Com-

mission and Professor. Cogliolo’ s two reports no less than

six serious efforts were made by CITEJA, its Rappor-

teurs, or its successor, the Legal Committee of the Inter-

national Civil Aviation Organization, to formulate a con- 8

vention that would deal with charter relationships.“

These efforts resulted in draft conventions spelling out

the liability of the airline to the passenger in a voyage

charter of the kind involved herein. These efforts are not

seriously considered in the majority opinion, below, but

they raise an obvious question. Why were six official ef.

forts made to formulate such a convention if the Warsaw

Convention already specified this liability?

The majority opinion below virtually skips these efforts

and proceeds to a consideration of the International Con-

ference at the Hague in 1955 which produced the Hague

Protocol (A. 101a-102a). Even here the majority opinion

ignores the plain impact of the historical record. The

question of charters came up at the Hague Conference, but

again it was deferred. ete

The Final Act”? of the Hague Conference provided:

„TRR ConFERENCE *

Havine Consmerzp the report of the 1

of the Legal Committee of the International Civil

Aviation Organization on the charter and hire of air-

craft, : ; |

e Archives 579.61 1685 1814; CITEJA Doc. 423, p. 2, con-

tained in SIX 9; S ” Air Charter 388 (1961); Reents,

Charter, Hire and Interc e of Aircraft 10 (McGill 1956), con-

tained in SJX 11; CITEJA Doc. 445 contained in ICAO Doc. 4003

at pp. 29-66, SIX 13; KCAO Doc, 4003, pp. 67-75, SIX 13; ICAO

Dee. * SIX .14; ICAO Doe. 7229-LC/133, p. 197,

* |

Arp Berna OF THE Orrnton that the matter is of too

great complexity to permit the insertion of provisions

relating thereto in the Protocol to amend the Warsaw

Convention,

Bor Conswenine that the matter is of considerable

practical importance in view of the extent of charter

and hire arrangements and requires further study,

Nncommkxbs to the International Civil Aviation Or-

ganization that this subjeet should be further studied .

by this organization.’

¢ The language and structure of the treaty.

The foregoing consideration of history, both before and

after the enactment of the Warsaw Convention supplements

the significance of the language of the treaty itself. A fair

reading of the entire Warsaw Convention demonstrates

that it“ was exclusively concerned with unifying certain

rules in normal, individual passenger travel. The Conven-

‘tion turns not on flights or travel, but on the traditional

definite contract of carriage between passenger and carrier.

The only two parties mentioned are the airline and the

passenger and the only contract mentioned is the one

between them. Charterers are not mentioned; nor are

charter contracts or charter flights.

Furthermore, the structure of the convention is in terms

of two parties and a two party relationship and a single

definite contract, whereas, even as stated in the majority

opinion below, a charter arrangement, including the par-

_ ticular one involved herein, involves three parties, the

owner of the aircraft, the charterer, and the passenger.

Furthermore, it involves at least two contracts, the one

‘between the owner and the charterer, and one between

the charterer and the passenger.

ICAO Document. 7686, pp. 19-32, SIX 14:

31

c

A divided Court of Appeals after a two and a half year

consideration of the question evolved an erroneous in-

terpretation of an important question under an important

international treaty in which the United States has a great

interest. The case itself involves ‘sixty-two deaths. The

amount of charter flying has rapidly inereased until it is

now a substantial part of all international air travel. De-

x pending on questions now before this Court the amount of

air charter transportation may increase even further. This

court now has this same treaty under consideration on a

auestion that is not unrelated to the question herein. The

court should grant this petition for a writ of certiorari

and review the determination by the court below that the

Warsaw Convention covers charter nichts.

Respeetfully submitted,

Lez S. Krermpier |

Wuuiam H. Scuroper

Han M. Dorsey, Jn. a

Hersert A. RWB. ;

Counsel for Petitioners acting on behalf

of all Petitioners’ attorneys including:

Hax Post, Brannon & Dorsey, Attor-

neys for Bates Block (8286); Henry C.

Berry (S500); Ewing S. Hum hreys

(6208); C. Terrell (8296); John M.

er ; fg Samuel Candler

(oil Sorrow (8403); Ralph

1 1 Citizens & Southern

National Bank (8408); Trust Co. of Geor-

ia (8710 and 8707); and First National

ank at Winter Park (8970). .

Trourman, “or Hinton & Lockerman,

Attorneys for n F. * 4 (8292);

David C. nd Rober? ; William King

3 bert P. * Jr.

Q

32

Surrn, Conn, RINGEL, aun Marin &

(on). Attorneys for Claire W. Morse

Kura & Spatpina, Attorneys for Sartain

Lanier (8287).

Loxxr & Bowpsn, Attorneys for Henry L.

(8401. (8288); and James T. Wann

Alsrox, Mun & Gamsxs, Attorneys for

Trust Co. of Georgia (8289).

| Aine Mc Lennan, Attorney for Thomas @.

Moore (8293).

Harogzzx, Meverson, Gasca & Irvin, At-

torneys for Robert L. Gerson (8305).

Vanpiver, Barwick aun Bentuzy, Attorneys

for Citizens & Southern National Bank

— ); William Baton Merritt (8341); and

arroli Young Cargile (8398 and 8399).

| WATKINS, Dante, Davis & Sznsy, Attorneys

18842 5 & Southern National Bank

J ones, Bmp & Howe, 1 for Tom-

Chris Allen (8343).

_ Dorsey, Dorsey & Srnornxn, 8 for

Citizens & Southern National Bank (8345).

Camm & Posrett, Attorneys for Citizens &

Southern National Bank (8347).

' Berrram 8. Bora, Attorney for Jake Gold-

stein (8348).

Frank H. Lawson, Attorney for Frank E.

Loomis (8404).

WESTMORELAND, Hatz. & O Bum, 13

for Percy H. Perkins (8406).

Wane, Sreawe & Gnrrr, Attorneys for

Frenk Monge (8407).

33:

Haas, Dunaway, Sumer & Haas, Attorneys

for Trust Company of Georgia (8409).

Grant, Spears & Duckworts, Attorneys for

First National Bank of Atlanta (8506).

Pootz, Pzarce & Coorzr, Attorneys for

Bank of Georgia (8662 and 8680); and

Fulton National Beck of Georgia (8665).

Jounson & Haves, Attorneys for First Na-

tional Bank of Atlanta (8727); Citizens &

_ Southern National Bank (8728); and Cen-

ter C. Williamson (8344).

Surg, Currm & Hancock, Attorneys for

First National Bank of Georgia (8972).

Rosert S. Dennis, Attorney for Rosa M. |

' . Baskett (8893). | .

Of Counsel:

KREINDLER & KREINDLER

LER S. Krempier

Miuron G. Suxcorr

SraxLRT J. Levy

GERALD A. Rogg

Tntor Ry J. HEALEY

Dax ml. DonnELLy .

99 Park Avenue,

New York, New York 10016.

February 6, 1968 |