# Petition for Writ of Certiorari — Block v. Compagnie Nationale Air France > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_1425%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1968 - **Citation:** 392 U.S. 905 ## Text 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 %%% ²˙⁰Ü⁰...˙⁰r»̃ Ie 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 » 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. - 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 | --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_1425%3A1. Public record. Not legal advice.