Appendix — Block v. Compagnie Nationale Air France

Supreme Court brief1968

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ae FE, ?

SUPREME COURT. Uk & wal sw:

JOUN F. DAViS, CL

In THE’

Supreme Gourt of the Hated Staten

October Term, 1967.

No. 1 089

BATES BLOCK, ez al.,

oa Petitioners,

vs.

COMPAGNIE NATIONALE AIR FRANCE,

Respondent.

SS—?3:——“—“oOoOoooooool™OOONSSSS

Appendix to the Petition for a Writ of Certiorari to the -

__ ‘United States Court of Appeals for the Fifth Circuit.

Wiruas H. Sctnesss.

1605 William-Oliver Building,

Atlanta, Georgia 30303

Hvuex M. Dorsey, Jr.,

Herpert A.’ Rice,

- Lez S. Krernpier,

Attorneys for Petitioners acting on be-

half of all Attorneys named. in the

Petition. ’

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Tas Rerosetas Company, Ino., New York, N. ¥. 10007—213 RE 24978—1968 ‘

- (8980) .

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_ Index to Appendix.

Re Page

Appendix: A. English translation of the Warsaw

Convention as set forth in 49 U. S. Statutes

at Large 3000, 3014 | la .

Appendix B. Opinion of the United States District

Court, Northern District of Georgia ................ 32a

Appendix C. Opinion of the United States Court of

Appeals for the Fifth Circuit 58a

Appendix D. . Judgment of the United States Court

of Appeals for the Fifth Cireuit -.................. 119a

la.

APPENDIX A.

49 U.S. Stat. at L. 3000, 3014.

3014 INTERNATIONAL AIR TRANSPORTATION.

OCTOBER 12, 1929. ae

‘s Translation

Multilateral Convention

_ relating to international

air . transportation.

' CONVENTION FOR THE UNIFICATION OF OER-

TAIN RULES RELATING TO INTERNATIONAL

| TRANSPORTATION BY AIR

Contracting Powers.

The President of the German Reich, the Federal Presi-

dent of the Republic of Austria, His Majesty the King of -

the Belgians, the President of the United States of Brazil,

His Majesty the King of.the Bulgarians, the President of

the Nationalist Government of.China, His Majesty the

King of Denmark*and Iceland, His Majesty the King of

Egypt, His Majesty the King of Spain, the Chief of State

of the Republic of Estonia, the President of the Republic

of Finland, the President of the French Republic, His

Majesty the King of Great Britain, Ireland, and the Brit-

ish Dominions beyond the Seas, Emperor of India, the

President of the Hellenic Republic, His Most Serene High-

ness the Regent of the Kingdom of Hungary, His Majesty

the King of Italy, His Majesty the Emperor of Japan, the

President of the Republic of Latvia, Her Royal Highness

the Grand Duchess of Luxemburg, the President of the

United Mexican States, His Majesty the King. of Norway,

Her. Majesty the Queen of the Netherlands, the President

of the Republic.of Poland, His Majesty the King of Ru-

Appendia A

mania, His Majesty the King of Sweden, the Swiss Fed-

eral Council, the President of the Czechoslovak Republic,

the Central Executive Committee of the Union of Soviet

- Socialist Republics, the President of the United States

of Venezuela, His Majesty the King of Yugoslavia:

Having recognized the advantage of regulating in a

uniform manner the conditions of international transpor-

tation by air in respect of the documents used for such

transportation and of a liability « the carrier,

Have eneteatel to ‘this end their respective Pleni-.

potentiaries, who, being thereto duly authorized, have

concluded and signed the following convention:

Chapter I. Seope—Definitions

Article 1

Scope.

(1) This convention shall apply to all international

transportation of persons, baggage, or goods performed —

by aircraft for hire. It shall apply equally to gratuitous

transportation by aitcraft performed by an air trans-

portation enterprise.

Definitions.

(2) For the purposes of this convention the expression

“international transportation” shall mean any transporta-

tion in which, according to the contract made by the par-

ties, the place of departure and the place of destination,

whether or not there be a break in the transportation or a

transshipment, are situated either within the territories

- + of two High Contracting.Parties, or within the territory

Appendia A

of a single High Contracting Party, if there is an agreed

stopping place within a territory subject to the sovereignty, .

suzerainty, mandate or authority of another power, even

though that power is not a party to this convention.

Transportation without such an agreed stopping place

between territories subject to the sovereignty, suzerainty,

mandate, or authority of the same High Contracting Party

shall not be deemed to be international for the purposes

of this convention. © |

(3) Transportation to be performed by several suc-

cessive air carriers shall be deemed, for the purposes of

this convention, to be one undivided transportation, if it

_ has been regarded by the parties as a single operation,

whether it has been agreed upon under the form of a sin-'

gle contract or of a series of contracts, and it shall not

lose its international character merely because one con-

tract or a series of contracts is to be performed entirely

within a territory subject to the sovereignty, suzerainty,

mandate, or authority of the same High Contracting

Party. chee

Article 2

Application of. convention.

(1) This convention shall apply to transportation per-

formed by the state or by legal entities constituted under

public law provided it falls within the conditions laid down

in article 1. &

(2) This convention shall not apply to transportation

performed under the terms of any international postal

convention. he 18 |

Appendix A

Transportation documents.

Chapter II. Transportation Documents

Section I—Passenger Ticket. .

| Article 3

: Passenger ticket.

(1). For the transportation of passengers the carrier

must deliver a passenger ticket which shall contain the.

' following particulars:

(a) The place and date of issue;

(db) The ad of departure and of destination; :

carrier may reserve the right to alter the stopping places

in case of necessity, and that if he exercises that right,

the alteration shall not have the effect of depriving the

transportation of its international eharaetee;

(d) ~The name and address of the carrier or carriers;

(e) A statement that the eaisiotetion is subject to

_ the rules relating to liability established sd this. conven-

tion.

(2) The absence, irregularity, or loss of the passenger

ticket shall not affect the existence or the validity of the

contract of transportation, which shall none the less. be

subject to the rules of this convention. Nevertheless, if

_- the carrier accepts a passenger without a passenger ticket

having been delivered he shall not be entitled to avail him-

Appendix A

self of those provisions of this convention which exclude

or limit his Hiability.

Section II.—Baggage Check

Article 4

Baggage check. |

(1) For the ume of lieu other than

small personal objects of which the passenger takes charge

himself, the carrier must deliver a baggage check.

(2) The baggage check shall be made out in duplicate,

one part for the passenger and the other part for the car-

rier.

(3) The baggage check shall conteie the sultcuiag

particulars: .

‘

(a) The place and date of issue;

(b) The place of departure and a destination ;

(d) The number of the ee ticket ;

(e) A statement that’ delivery of the iii will be

made to the purer of the baggage check;.

(f) The number and weight of the packages;

(g) The amount of the value declared in ianieianite |

with article 22(2); |

Appendiz A

(h) <A statement that the transportation: ‘is subject to

the rules relating to liability established by this conven-

tion.

(4) The absence, irregulatity, or loss of the baggage —

check shall not affect the existence or the validity of the -

contract of transportation which shall none the less be

subject to the rules of this convention. Nevertheless, if

the carrier accepts baggage without a baggage check hav- |

ing been delivered, or if,the baggage check does not con-

tain the particulars set out at (d), (f), and (h) above, the

carrier shall not be‘entitled to avail himself of those pro-

visions of the. convention which exclude or limit his lia-

—

- Section III.—Air Waybill

Article 5

Air waybill.

“a (1). Eyery carrier of goods has the right to require the

consignor to make out and hand over to hima document

called an “air waybill” ; every consignor has the right to

_ require the carrier to accept this document.

(2) The dhetaen, irregularity, or loss of this document

shall not affect the existence or the validity of the con-

* tract of transportation which shall, subject to the provi-

' sions of article 9, be none the less governed by the rules

of this convention.

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Appendix A

Article 6

Requirements. |

(1) | The air waybill shall be made out by the consignor

in three original parts and be handed over with the goods.

(2) The first part shall be marked “for the carrier”,

and shall be signed by the consignor. The second part

shall be marked “for the: consignee” ; it shall be signed by.

the consignor and by the carrier and shall accompany the

goods. The third part shall be signed by the carrier and

handled by him to the consignor after the goods have been

— accepted. . .

(3) The carrier shall sign on acceptance of the goods.

(4) The signature of the carrier may’ be stamped; that

of the consignor may be printed or stamped.

(5) If, at the request of the consignor, the carrier

makes out the air waybill, he shall be deemed, subject to .

proof to the contrary, to have done so on behalf of ‘the

consignor. :

Article 7

The carrier of ‘goods | has the right to require the con-

signor to make out ‘separate waybills when there is more

than one package. =

7 Article 8 |

Contents.

The air. waybill shall contain the following particulars:

Appendia A

(a) nad place and date of its execution ;

(b) ‘The Place of departure and of destination; |

rier may reserve the right to alter the stopping places in |

ease of necessity, and that # he exercises that right the

alftration shall not have the effect of depriving the trans-

poration of its international character;

~ (d) The name and address of the consignor ; .

(e) The name and address of the first carrier ;

(f) ~The name and address of the consignee, if the case *

so requires;

(g) - The nature of the goods 85

(h) . The salieis of packages, the method of packing,

and the particular marks or numbers upon them’

. (i) The weight, the quantity, the volums. or - dimen-

sions of ‘the een |

(j) The apparent qentitivn of the goods and of the

packing ;

(k) The freight, if it has been agreed upon, the date

and place of payment, and the person who is to pay it;

m1 If the goods are sent for payment on ; ddan, the

_ price of the goods, and, if the case so requires, the amount

of the expenses incurred;

) (mm) The amount of the value declared in accordance

_ with article 22 (2); 3

. Appendia A 9

(n) The number of parts of the air waybill ;

(o) The documents handed to the carrier to accompany

the air waybill;.

(p) The time fixed for the completion of the oo,

portation and a brief note of the route to be followed, if .

these matters have been agreed upon;

. (q) A statement that the transportation is ules to

the rules relating to liability established by this conven-

tion.

Article 9

* Liabilities.

If -the carrier accepts goods without an air waypbill

having been made out, or if the air waybill.does not con-

tain all the particulars set out in article 8 (a) .to (i), in-

elusive, and (q), the carrier shall not be entitled to avail

himself of the provisions of this convention which exclude

or limit his liability.

Article10

Responsibility for correctness.

{1) ‘The consignor shall be responsible for the correct-.

ness of the particulars and statements relating to the

goods which he inserts in the air ace

(2) The consignor shall be tiablgetor all pea ‘suf-

fered by the carrier or any other person by reason of the

irregularity, incorrectness .or incompleteness of the said

particulars and statements. -

5 | a’

_ Appendix A

2 Article 11

Prima: facie evidence of contract.

‘(1) The air waybill shall be prima facie evidence of

~ the conclusion of the contract, of the receipt of the goods

and of the conditions of transportation.

(2) The statements in the air waybill relating to the

weight, .dimensions, and packing of: the goods, as well as

those relating to the number of packages, shall be prima

facie evidence of the facts stated; those. relating to the |

quantity, volume, and condition of the goods shall not

constitute evidence against.the carrier except so far as

they both have been, and are stated in the air waybill to

have been, checked by him in the presence: of the con-

signor, or relate to the apparent condition of the goods.

Article 12

, Consignor’s right to dispose of goods.

(1) Subject to his liability to carry out all his obliga-

tions under. the contract of transportation, the-consignor

shall have the right to dispose of the goods by withdraw-

ing them at the airport | of departure or destination, or by

stopping them in the.course of the journey on any landing,

or by calling for them to be delivered at the place of desti-

nation, or in the course of the journey to a person other

than tlie consignee named in the air waybill, or by, requir-

ing them to be returned to the airport of departure. He

must not exercise this right of disposition i such a way

as to prejudice the carrier or other consignors, and he

must repay any expenses occasioned by the exercise of

_ this right.

lla

Appendix A

(2). If it-is impossible to carry out the orders of the .

consignor the carrier must so inform him forthwith.

(3) If the carrier obeys the orders of the consignor for

the disposition of the goods without requiring the produc-

tion of the part of the air waybill delivered to the latter,

he will be liable, without prejudice to his right of recovery

from the consignor, for any damage which may be caused

thereby to any person who is lawfully in possession of

- that part of the air waybill.

(4) The right conferred on the consignor shall cease

at the moment when that of the consignee begins in ac-

cordance with article 13, below. Nevertheless, if the con-

signee declines to accept the waybill or the goods, or if he

cannot be communicated with, the consignor shall resume

his right of disposition. - ek

Article 13.

Delivery of goods and waybill.

(1) Except in the cireumstances set out in the pre-

ceding article, the consignee shall be entitled, on arrival

of the goods at the place of destination, to require: the —

carrier to hand over to him the air waybill and to deliver

._ the goods to him on payment of the charges due and on’

complying with the conditions of transportation: set out

in the air waybill. |

(2) Unless it is otherwise agreed, it shall be thé duty

of the carrier to give notice to the consignee as-soon as

the goods arrive. . |

(3) If the carrier admits the loss of the goods, or if

the goods have not arrived at the expiration of seven days

12a

| Appendix A

after the date on which they ought to have arrived, the

consignee shall be gntitled to put into force against the

earrier the. rights which flow from the contract of trans-

portation. - | :

Article 14

Enforcement of respective rights. |

The -<consignor and the consignee can respectively en-

force all the rights given them by articles 12 and 13, each |

in his own name, whether he is acting in his own interest

or in the interest of another, provided that he carries out

the obligations imposed by the contract.

. Article 15

Respective relationship.

& | }

(1) Articles 12, 13, and 14 shall not affect either the

relations of the consignor and the consignee with each

other or the relations of third parties whose rights are

, derived either from the weniger or from the consignee.

Variations in waybill. ©

| (2) The provisions of articles 12, 13, and 14 can sty

be varied by express provision in the air waybill. “

Article 16

Customs, ete., Samat,

(1) The consignor must furnish such information and

attach to the air waybill such documents as are necessary

to meet the formalities of customs, octroi, or police before

138 |

Appendix A

the goods can be delivered to the consignee. The con-

Signor shall be liable to the tarrier for any damage occa-

sioned by the absence, insufficiency, or irregularity of any

such information or documents, unless the damage is due \.

to the fault of the carrier or his agents. , |

(2) The carrier is under no obligation to enquite into

the correctness or sufficiency of such information or docu-

_ ments. — - 7

Liability of carrier.

ae Chapter III. Liability of the Carrier

| Article 17

Personal injuries, Ye

The carrier shall be liable for damage sustained in the

event of the death or wounding of a passenger or any

other bodily injury suffered by a passenger, if the acci-

dent which caused the damage so sustained took place on

board the aircraft or in the course of any of the. operations

of embarking or disembarking.

Article. 18

Checked baggage, ete.

. 7 PY

(1) The carrier shall be liable for damage sustained in

the event of the destruction or loss of, or of damage to,

any checked baggage or any goods, if the occurrence which

caused the damage so sustained took place during the

transportation by air. “ |

(2) The transportation by air ‘within the meaning of °

the preceding paragraph shall comprise the period during

l4a

Appendia A*

which the begenge or pas are in i of the carrier,

whether in an airport or on board an aircraft, or, in the

ease of a landing outside an airport, in any place what-

. _ soever. %

(3) The period of the transportation by air shall not

extend to any transportation by land, by sea, or by river

performed outside an airport. If, however, such trans-

portation takes place in the performance of a contract for

transportation by air, for the purpose of loading, delivery

or transshipment, ahy damage is presumed, subject to |

proof to the contrary, to have been the result of an event

which took place during the eiaanivanaem by air.

a Article 19

Transportation delay.

- The carrier shall be liable for damage occasioned by

delay in the transportation sialhe air of ‘passengers, _—

or goods.

(o)

Article 20

Exemptions:

(1) The carrier shall. not be liable if - ‘ proves that

he and his agents have taken all necessary measures to

avoid the damage or that it was impossible for-him-or~ — -

- them to take such:measures. |

( 2) In the’ “transportation of ale and 5 ieee the

carrier shall-not be liable if ‘he proves that the damage

was occasioned _by an error in piloting, in the handling of .

the aircraft, or in navigation and that, in all other re-

-spects, he and his agents have taken all necessary meas-

ures to avoid the damage.

lda

Appendix A

Article a. -

Contytbatory negligence.

If the carrier proves that the damage was caused by or

contributed to by the negligence of the injured person the

- Court may, in accordance with the provisions of its own

law, exonerate the carrier wholly or partly from his lia-

bility. . os Ai

Article 22

"Maximum liability.

(1). In the transportation of "passengers the liability -

of the carrier for each passenger shall be limited to the

sum of. 125,000 francs. Where, in accordance with the law °

of the court to which the case is submitted, damages may

be awarded in the form of periodical payinents, the equiva-

lent capital value of thé said payments shall not exceed

125,000 francs. Nevertheless, by special contract, the car-

rier and the passenger may agree to a higher limit of

liability. Grrr as

(2) In the transportation of checked. baggage and of

goods,, the liability of the carrier shall be limited to-a sum

of 250 franes per kilogram, unless the consignor has made,

at the time when the package was handed over to the car-

rier, a special declaration of the value at delivery. and

_ has paid a supplementary sum if the case SO requires.

In that case the carrier will be liable to-pay a sum not

exceeding the declared sum, unless he proves that that

sum is greater than the actual value to the consignor at

delivery. pe i

16a.

Appendix A

(3) As regards objects of which. the passenger takes

_ charge himself the liability of the carrier shall be limited

to 5,000 franes per passenger.

(4) The sums mentioned above shall be-deemed to re-

fer to the French franc consisting of 65 1-2 milligrams of |

- gold at the standard of fineness of nine-hundred thou-

sandths. These sums may .be converted into any national

currency in round figures.

_ Article 23

Provision for relieving, ete., liability void.

Any provision tending to relieve the earrier of liability — -

. or to fix a lower limit than that which is laid down in this

convention shall be null and void, but the nullity of any

such provision shall not involve the nullity of the whole

. eontract, which. shall remain subject to the pe of —

this convention.

; Article 24

- Actions, for certain damages. |

(1) te the ‘cases covered by: articles 18 on 19 any “a

action for damages, however founded, can only be brought

subject: to the conditiqns and limits set out in oe con-

vention.

(2) In the cases covered by article 1 17 the provisions of

the preceding paragraph shall also apply, without -preju-

dice to the questions as to who are the persons who have

the right to bring suit and what are their respective rights.

- ?

17a

‘Appendiz A i

Article 25

Carrier’s wilful misconduct. } :

(1) Theecarrier shall not be entitled t¢ avail himself

of the provisions of this convention which exclude or limit

his liability, if the damage is caused by his wilful miscon-

duct or by such default on his part as, in accordance with

the law of the court to which the case is‘ submitted, is con-

sidered: to be equivalent to wilful misconduct.

(2) Similarly the carrier shall not be entitled to avail |

himself of the said provisions, if the damage is caused

under the same circumstances by any agent of the carrier —

acting within the ‘scope of his employment. ean

_ Article 26

Evidence of delivery in good condition.

(1) Receipt by the person entitled to the delivery of

. -baggage or goods without complaint shall be prima facie

evidence that the same have been delivered in good cendi-

tion and in accordance with the document of transporta-

tion. ? ox ty EA

In case of damage.

(2) In ease of damage, the person entitled to delivery

must complain to the carrier forthwith after the discovery

.. Of the damage, and, at the latest, within 3 days from the

date’ of receipt in the case of baggage and 7 days from

the date of receipt in the case of goods. In case of delay

the complaint. must be made at the latest within 14 days

from the date on which the baggage. or goods have: been -

placed at his disposal. Pee ef -

18a

Appendia: A

Complaints in writing.

(3) “Every complaint ‘must be made in writing upon

the document of transportation or by separate notice in

wong, dispatched. within the times aforesaid. ©

(4) Failing complaint within the times steaiala: no

action shall lie against the carrier, save in the case of

fraud,on his part.

Article 27

Liability of estate of deceased person.

- In the case of the death of the. person liable, an action

tee damages lies in accordance with the terms of this

convention against: those legally representing his estate.

Article’ 28

Venue of action. 4.

(1) An action for damages must be brought, at the

option of the plaintiff, in thé territory of one of the High

Contracting Parties, either before the court of the domi-

cile of the carrier or of his principal place of business,

or where he has a place of business through which the

‘contract has been made, or before the court at the el

of destination.

- Procedure,

-. (2). Questions of procedure shall be governed by the

law of the court to which the case is submitted.

Article 29

~. Time limitation. _. a

- (1): Thé right to damages shall be ex inguished if an

’ action is not brought within 2 years, reckoned from the

date of arrival at the destination, or from the date on

which the aircraft ought to arrived, or from the date on

which the transportation “stopped. : -

. (2) The method of calculating the period of limitation

shall be determined by the law of the court to which the

case is submitted. ) ai ae

| Article 30

_ ‘Transportation: by successive carriers.

(1) In the case of transportation to be performed by

various successive carriers and falling within the defini-

tion set out in the third paragraph of article 1, each car.

rier who . accepts ‘passengers, baggage or goods shall be

subject to the rules set out in this convention, and shall be

deemed to be one of the contracting parties to the contract

of transportation insofar as the contract deals with that

part of the transportation which is performed under. his’

supervision. | Re Ed Tones

(2) In the case of transportation of this nature,. the

passenger or his representative can take action only

against the carrier who performed the transportation dur-

ing which the accident or the delay occurred, save in the

case where, by express agreement, the first carrier has

assumed liability for the whole journey.

20a

: Appendix A

~ (8) As regards baggage or goods, the passenger or

consignor shall have a right of action against the first

carrier‘and the passenger or consignee who is entitled to

delivery: shall have a right of action against the last

- ‘earrier; and further,-each may take action against the

carrier who performed the transportation during which

. the. destruction, loss, ‘damage, or delay took place. These

earriers shall be jointly and severally liable to the pas-

senger or,to the consignor or consignee.

Chapter IV. Provisio#$ Relating to Combined

<s Transportation oy

Combined transportation.

_ Article 31° —

Provisions relating to.

_ (1) In the case of combined transportation performed

partly by air and partly by any other mode of transporta-

tion, the provisions of this convention shall apply only to

the transportation by air, provided that the.transporta-.

tion by air falls within the terms of article 1.

(2) Nothing in this convention shall prevent the par-

ties in the case of combined transportation from inserting

. in the document of air transportation conditions relating

to other modes of transportation, provided that the pro-

visions. of this convention are observed as regards the

transportation by air. .— 3 x

Chapter V. General and Final Provisions

21a

pital A

Article 32

General, etc., provisions.

_ . Amy clause contained in the contract and all special

agreements entered into before the damage occurred by

which the parties purport to infringe the rules laid down

‘by this convention, whether by deciding the law to be ap-

plied, or by altering the rules as to jurisdiction, shall be

null and void. Nevertheless for the transportation of

goods arbitration clauses shall be allowed, subject to this

convention, if the arbitration is to take place within one

of the jurisdictions referred to in the first paragraph of

article 28. ,

Article 33

Rights of carriers to refuse, ete.

. Nothing contained in this convention shall prevent the |

carrier either from refusing to enter in any. contract of

transportation or from making regulations which do not

conflict with the provisions of. this convention.

Article 34

Transportation excluded from application of convention.

This convention shall not apply to international trans-

portation by air performed by way of experimental trial

by air navigation enterprises with the view to the estab-

lishment of regular lines of air navigation, nor shall it

apply to transportation performed in extraordinary cir-

cumstances outside the normal scope of an air carrier’s

business. . | | : |

| 22a

Appendia ‘4

Article 35

_ “Days” definéd. |

The expression “days” when used in this. convention

means current days, not working days.

Article 36

Deposit of original covenant, certified copies to be fur-’

nished. ,

This convention is drawn up in French in a single copy

which shall remain deposited in the archives of the Min-

istry for Foreign Affairs of Poland, which one duly cer-

tified copy shall be sent by the Polish Government to the

Government of each of the High Contracting Parties.

Article 37

- Deposit of ratifications. .

(1) This convention shall be ratified. The instruments

of ratification shall be deposited in‘the archives of the

Ministry for Foreign Affairs of Poland, which shall give

notice of the deposit to the Government of each of the

High Contracting Parties.

Effective dates, ete,

(2) As soon as this convention shall have been ratified

by five of the High Contracting Parties it shall come into

_ force as between them on the ninetieth day after the de-

posit of the fifth ratification. Thereafter it shall come —

into force between the High Contracting Parties which

shall have ratified and the High Contracting Party which

of each ratification.

28a.

| Appendia A

_ deposits its’ instrument of ratification on the ninetieth

‘day after the deposit.

N otification.

(3) It shall be the duty of the Government of the Re- |

public of Poland to notify the Government of each of the

High Contracting Parties of the date/on which this con-

vention comes into force as well as the date of the deposit -

Article 38

Adherence.

( 1) This convention shall, after it has ‘eome into force,

remain open for adherence by any state.

oN otices to be given.

(2) .The adherence shall be effected by a notification

‘addressed to the Government of the Republic of Poland,

which shall inform the Government of each of the High

Contracting Parties thereof. | :

(3) The adherence shall take effect as from the nine-

tieth day after the notification made to the Government —

of the Republic of Poland. . |

Article 39

: Denunciations.

(1) Any ond of the High Contracting Parties may de-

nounce this con on by a notification addressed to the

Government of the Republic of Poland, which shall at

24a

Appendix A

once inform the Government of each of the High Con-

tracting Parties. . ;

(2) Denunciation shall take effect six months after the

notification of denunciation, and shall operate only as re-

gards the party which shall have proceeded to denuncia-

tion. ;

Article 40

Colonies, protectorates, ete.; application of convention.

_(1) Any High Contracting Party may, at the time of. ©

signature or of deposit of ratification or of adherence,

declare that the acceptance which it gives to this conven-

tion does not apply to all or any of its colonies, protec-

torates, territories under mandate, or any other territory

’ subject to its sovereignty or its authority, or any other

territory under its suzerainty. - -

(2) Accordingly any High Contracting Party may sub- .

_ sequently adhere separately in the name of all or any of -

its colonies, protectorates, territories under mandate, or

any other territory subject to its sovereignty or to its au-

thority or any other territory under its suzerainty which

have been thus excluded by its original declaration.

(3) Any High Contracting Party may denounce this

convention, in accordance with its provisions, separately

- or for all or any of its colonies, protectorates, territories _

under mandate, or any other territory subject to its sov-

ereignty or to its authority, or any other territory under

its suzerainty.

teens Ln ch NII A a tN:

‘Succeeding conferences.

Any isigh Contracting Party shall be entitled not earlier

than two years after the coming into force of this conven-.

tion to call for the assembling of a new international con-

- ference in order to consider any improvements which may’

be made in this convention. To this end i+ will communi-

cate with the Government of the French Republic which

will take the necessary measures to make preparations for

‘such conference.

‘Signatures.

“This convention, done at Warsaw on October 12, 1929,

shall remain open for signature until J my 31, 1930.

a! Germany:

: R. Richter _

Dr. A. Wegerdt

Dr. E. Albrecht

Dr. Otto Riese

For Austria:

Strobele

Reinoehl

. For Belgian:

Bernard.-de V’Escaille

os For the United States of Braeil :

Alcibiades Pecanha

For Bulgaria:

26a

Appendix A

For China:

For Denmark:

L. Ingerslev.

Knud Gregersen

For Egypt:

_ For Spain: |

Silvio Fernandez-Vallin

' For Betoala:

For Finland:

-_ For France:

Pierre Etienne Flandin |

Georges Ripert

For Great Britain and Northern

Ireland: |

: A. H. Dennis »

Orme Clarke

R. L. Megarry ©

For the Commonwealth of Australia:

A. H., Dennis :

Orme Clarke

R. L. Megarry

For the Union of South Africa:

A. H. Dennis

Orme Clarke

R. L. Megarry -

a ae ee a SL ee DS eS

27a

| Appendia A

For the Hellenic Republic:

G. C. Lagoudakis

For Hungary:

For Italy: |

A Giannini

—

. For Japan:

Kazuo Nishikawa

For Latvia:

M. Nuksa

For Luxemburg: —

EK. Arendt

For Mexico:

For Norway:

N. Chr. Ditleff

_ For the Netherlands:

_ W. B. Engelbrecht

For Poland: '

Auguste Zaleski

Alfons Kuhn

For Rumania:

G. Cretziano

For Sweden: P

‘For Switzerland:

‘Edm. Pittard

_Dr. F. Hess

My .

28a

Appendix A

For Czechoslovakia:

Dr. V. Girsa

For the Union of Soviet Socialist

’ Republics:

~ _Kotzubinsky

For Venezuela:

For Y' ugoslavia:

Ivo de Giulli

Additional Protocol

With wecaipntas to Article 2

Additional Protocol.

_. Ante, -p. 3001.

International transportation by State, ete.

The High Contracting: Parties reserve to themselves the

right to declare at the time of ratification or of adherence ~

that the first paragraph of article 2 of this convention —

shall not apply to international transportation by air per-

formed directly by the’ state, its colonies, protectorates,

or mandated territories, or by any other territory under

its sovereignty, suzerainty, or authority.

Signatures.

For Germany:

R. Richter —

‘Dr. A. Wegerdt

‘Dr. E. Albrecht

Dr. Otto Riese

. 29a

Appendix A

For Austria:

Strobele

Reinoehl

For Belgium: Ge

Bernard de ]’Escaille eet

For the United States of Braz:

Alcibiades Pecanha — |

For Bulgaria:

For China:

| For Denmark:

L. Ingerslev

Knud Gregersen

For Egypt: . .

| For Spain: oe

’ meee Silvio Fernandez-Vallin

For Estonia: |. | ate

aah ona SE

_ For Finland:

For France:

Pierre Etienne Flandin

Georges Ripert. )

For Great Britain and Northern

Ireland:

A. H. Dennis.

Orme Clarke —

_ RB. L. Megarry

Appendix A

_ For the.Commonwealth of Australia:

A. H. Dennis

* Orme Clarke

R. L. Megarry .

| tie the Union of South Africa:

A. H. Dennis

Orme Clarke

R. L. Megarry

For the Hellenic Republic:

G. C. Lagoudakis

For Hungary:

For lI taly:

A. Giannini

| For Japan:

Kazuo Nishikawa

For Latvia:

M. Nuksa —

For Luxembourg:

KE. Arendt

For Mexico:

For Norway:

N. Chr. Ditleff

For the Netherlands: |.

W. B. Englebrecht

3la - ‘

Appendix A

| . — . For Poland:

de, 2 Auguste Zaleski

ss Alfons Kuhn

For Rumania;

G. Cretziano

For Sweden: |

For Switzerland: :

Ez . . - Edm. Pittard

Ps sie a) aaa Dr. F. Hess

For Czechoslovakia:

Dr. V. ‘Girsa

For the Union of Soviet Socialist

Republics: ,

ee ©. Kotzubinsky . ne

For Venezuela: Te eS

For Yugoslavia:

' Ivo de Giulli

(82a

APPENDIX B.

—_— :

Bates Biock, et al., as

: Plawntiff s,

Compagnie NationaLe Air FRANCE,

| Defendant.

Civ. A. Nos. 8286, et al.

e . = ;

UNITED STATES DISTRICT COURT, _

N. D. Georeua, ATanta Division.

Filed: May 6, 1964

Plaintiff Bates Block, as Executor of ‘the Estate of

Charles Baxter Jones, Jr., and ‘the Trust Company

of Georgia, as Executor of the Estate of Julia Lowry |

Block Jones, and Bates Block, as Guardian and Next

Friend of three minor children of the deceased Charles

- Baxter Jones, Jr., and Julia Lowry Block Jones, have

brought suit against Compagnie Nationale Air France

(hereinafter referred to as Air France) for the negli-

gent deaths of Charles Baxter Jones, Jr., and Julia

Lowry Block Jones. . The action» for both Mr. and Mrs.

Jones each alleges two separate claims. The first claim

for each of the deceased alleges that death was caused

_ by the “act, fault, imprudence or negligence of the de-

-fendant”. The second claim for each of the deceased

"alleges that the deaths were caused by “willful nsis-

conduct”.

“Thirty-one (31) other actions growing out of the same

air crash have been filed in this Court, and the complaints,

33a

Appendia B

together with the defensive pleadings, are substantially

the same. On October 15, 1963, all of these actions were

consolidated pursuant to Rule 42(a), Federal Rules of

Civil Procedure, as to a determination of liability of.

the defendant, with a separate trial as to damages for

each claim should the: issue of liability be determined in

favor of the plaintiffs.

These actions arise «out of an air crash of an Air

France 707 jet near Orly, Field, Paris; France, on. June

: 3, 1962. The decedents were all members of the: Atlanta

a Art Association, and on February 2,.1962, the Atlanta

Art Association had entered into an International Char- ~~

ter Flight Agreement with Air France for Air France to

furnish the jet liner for flight from Atlanta to Paris on

May 9, 1962, with return from Paris to Atlanta on June 3,

_ 1962. The charter charges were $36,000.00. Under the

terms of the Charter Flight Agreement Air Franee fur-

nished all the crews, fuel, etc.; and no passenger was\to be

carried unless such passenger had been issued a ticket

by Air France. ‘The International Charter Agreement

was made subject to the approval of the Civil Aeronau-

ties Board (hereinafter referred to as CAB) and, there-

after, the approval for this off-route charter was granted

by the CAB.: The Air France Plane was beginning the _

return flight to Atlanta’ according to the International

_Charter Agreement when the crash accurred, resulting

in death to all of the passengers on board. fi

Plaintiffs instituted these actions in this Court by the

filing of. complaints, and: in one claim of*each complaint

alleged that the plantiffs decedents died as a result of

the defendant’s negligence, and. that, based on the ap-

plicable law, a cause of action for recovery of damages

sustained by each of the plaintiffs exists in an. unlimited

amount. In its answer to each of the complaints, the

Appendia B

defendant alleged that the applicable law is the Warsaw

Convention’ (Convention for the Unification of Certain

Rules Relating to International Transportation by Air),

and the plaintiffs’ claims for’ unlimited compensatory

- damages are contrary to the Warsaw Convention, the

laws of France, and the contract of carriage.

Plaintiffs, thereafter, filed a motion to strike (Rule

- 12(f), F.R.C.P.) those parts of the defendant’s second

defense which rely on the Warsaw Convention or any

limitation of liability for damages, whether contained in

the said Warsaw Convention, the - French Statutory law,

the Charter Agreement, or on the ticket.

By order dated January 29, 1964, this Court denied

plaintiffs’ motion to strike for the reason that the ap-

plicability of the .Warsaw Convention could not, be de-

termined without reference to the facts as to the type

_ of- charter arrangement involved in this’ particular flight,

and that, as these facts were not evident grom the plead-

ings, the proper method to proceed would be a motion

with supporting affidavits filed pursuant to Rule 56,

F.R.C.P. See Augustus v. Board of Public Instruction of

Escambia County, Florida, 306 F. 2d 862..-

Plaintiffs, on March 9, 1964, filed a motion for partial

summary judgment (Rule 56, F.R.C.P.) seeking the

granting of a partial summary judgment dismissing and ‘

striking each and every part of the second defense to each

1 The Warsaw Convention was a Convention for the Unification

of .Certain Rules Relating to International Transportation. by Air,

signed by the representatives of 23 countries at Warsaw, Poland, on

October 12, 1929. Adherence to the Convention was advised by the

U. S. Senate June 15, 1934, and proclaimed the President of the

35a

A ppendia B

complaint which asserts that. the Warsaw Convention

is applicable to this matter, and that the plaintiffs’ claims

for damages as set forth in their petition are contrary

to, in conflict with, or limited by the Warsaw Convention, .

the laws of France, or any contract of carriage.

Affidavits and briefs having been filed by all parties

‘ in compliance with Local Rulé 8, the matter is now be-

fore this Court for: consideration. The Court also con-

siders the briefs, memoranda, and documents heretofore

filed by all the parties o» the plaintiffs’ motion’to strike

under Rule 12(f) as part of this motion.

From the evidence now presented, it appears that there

are no substantial differences as to the facts surround-

ing the arrangements of the “Jet Trip to the Louvre”.

It appears that around November, 1961, a commit-

tee of the Atlanta Art Association began working with

the American Express Company to obtain. a tour for

the Atlanta Art Association. Sometime prior to Feb-

‘Tuary 2, 1962 (the date of the execution of the Inter- |

--national Charter Flight Agreement) more than 100.mem- :

bers of the Association had made plans to make the trip. .

The International Charter Flight’ Agreement provided

that the ‘carriage was subject to the rules as established

by the Warsaw Convention. This agreement further

provided that the Association acted as agent for its

members and that a ticket was.to be issued to each pas-

senger.

The following provisions from said International Char-

ter Flight Agreement are particularly pertinent:

Appendiz B

_ “Article 4. OPERATIONS, INTERRUPTION

OR CANCELLATION OF FLIGHTS |

“(a) AIR FRANCE shall have exclusive control

over the aircraft chartered hereunder and reserves

the rights, in its sole discretion, to determine the

route to be flown and airports to be used... .

’

* ° *

“(d) The operating personnel are. the servants

. Or agents of AIR FRANCE and shall remain at

all times under the exclusive control of AIR

FRANCE.

“Article 6. CARRIAGE OF PASSENGERS,

BAGGAGE axp CARGO |

“Charterer shall not permit any passenger to be

carried unless such passenger has -been issued a

ticket by AIR FRANCE, nor permit any baggage

to be carried unless AIR FRANCE has issued a

baggage check therefor. ~ re

“ATR FRANCE, Charterer, and all passengers _

and/or shippers will be bound by the terms and

conditions of said AIR FRANCE tickets, baggage

checks and air waybills. “Any action taken by

Charterer with respect to said tickets, baggage .

checks and air waybills shall be deemed to be

taken as agent for the passenger or shipper.

37a

Appendia B

“AIR FRANCE shall have such, and only such,

liability to passengers or shippers with respect to

the charter flight as exists under the tickets, bag-

, Sage checks and air waybills so issued by AIR

FRANCE. ... , ‘ “

* e .

“Article 8. LIABILITY

“(a) Carriage furnished herein is subject to the

rules relating to liability established by the Con-

vention for the ‘Unification of Certain Rules Re-

lating to International Carriage by Air signed at

Warsaw, Poland, October 12, 1929 (hereinafter

called ‘Warsaw Convention’), unless such carriage

ay is not ‘International Carriage’ as defined by said .

Warsaw Convention.

“(b) To the extent not inconsistent with the

provisions of this Agreement, the carriage of pas-

sengers, baggage and goods herein is subject to

the tariffs, conditions of carriage and rules and

‘regulations of AIR FRANCE which are made a

part hereof. ... Charterer declares that he ‘has

taken note of the provisions of said a ake

tions. of earriage and rules and regulations, ap

undertakes to bring these.to the notice of passen-

gers and shippers, participating in the charter

- flight under this Agreement. :

e 86 ¢

«(f) This Agreement is entered into by .Char-

terer both on his own behalf and as duly author-

ized agent of; all passengers, and shippers and —

38a

3 _ Appendia B

consignees. and - other persons having any interest ©

in the baggage and cargo carried aon tor

this Agreement.

“(g) Charterer: undertakes to provide all infor-

mation necessary for the completing of the traffic

documents for all passengers, baggage and goods

to be carried. AIR FRANCE will supply and

complete the said traffic documents. Charterer

will accept delivery of the said traffic documents

‘on behalf of. the passengers -and-or shippers, ‘and

_ undertakes to convey to each passenger his pas-

senger ticket and baggage check and to each ship-

per his appropriate air waybill.

“(j) Charterer shall obey and observe all direc-

tions and instructions given to it by the Carrier

relating to the charter transportation herein speci-

fied and Charterer/agrees to indemnify and hold

harmless AIR F CE, its officers, agents, em-

ployees and servants, from all responsibility and

liability for any injury, damage, expense or loss

to’ any person or property ‘caused by or arising

out of any violation of this Agreement or any neg-

ligent act, omission, wrongful misconduct or mis-

representation of Charter, its officers, agents, em-

ployees and servants: ” 7

NOTE: “Schedule A stated to the International Charter

Flight Agreement states that the Charterer is an organi- ©

zation “whose principal aims, eueren and objectives -

are other than travel.”

7 ee a

‘Appendia B

The tickets provided for by the International. Charter

Flight Agreement were delivered to the passengers three

weeks prior to the May 9 Atlanta departure of the air-

craft. | ‘arg

As in every case, the question must relate to the per-

tinent facts, and in these suits, the question is “Does

the Warsaw Convention apply to - the particular flight

here under consideration?”

This Court heretofore, in various hearings, has noted

that there are various possible arrangements by which

a charter flight might be made and the question there-

fore is not “Does the Warsaw Convention apply gen-

erally to charter flights”, but the question is “Does the

Warsaw -Convention apply to this particular charter

ee ee eer | : | .

The Warsaw Convention was signed by the President

of the United States on October 29, 1934 (49 U.S. Stat.

at L. 3000, at p. 3013) by and with the advice and consent

of the Senate (49 U.S. Stat. at L. 3000) as provided by

- the Constitution (Article 11, Sec. 2, el. 2). pity

It is a valid and existing Treaty, Garcia v. Pan Ameri-

can Airways, Inc., 269 App. Div. 287, 55 N.Y.S. 2d 317

(1945), aff’d 295 N. Y. 852, cert. den. 329 U. S. 741;

and “constitutes part of the law of this land, overriding

state law and policies (U. S. Constitution, Article VI;

Wyman v. Pan American Airways, 181 Misc. 963, aff’d

267. App. Div. 947, 293 N. Y. 878, cert. den. 324 U. S.

1029). | -

The Convention first provides when it shall apply. It

specifies three exceptions to its applicability (Articles

2 and 34) but does not except charter flights. It pro-

40a.

Appendix B

vides a presumption of liability in favor of the passen-,

gers and against the carrier (Articles.17 and 20) and a

limitation of that liability (Article 22) with an excep-

tion to the limitation in the event of willful-misconduct” - b

(Article 25).. It provides that if the carrier’ fails to

deliver a ticket notifying the passenger of the applicability

of the Convention, the Convention shall still apply, but

the limitation: of liability shall not apply (Article 3).

Like any other treaty or statute, if the ‘facts come

within its general provisions, and not with an exception,

then the Treaty applies.

_Article 1 of the Treaty provides that:

“This Convention shall apply to all international

transportation of persons, baggage, or goods per-

formed by aircraft for hire. It shall apply equally

to gratuitous transportation by aircraft performed

by an air transportation enterprise.” :

From the pleadings, it is undisputed that the passen-

gers were being transported as passengers for hire by

the aircraft. The Convention applies to “all interna-

tional transportation of persons . . . by aircraft for hire”.

Thus, the Warsaw Convention applies if this was “in-

ternational transportation” within the meaning of: the Con-

vention.. The Convention leaves. no doubt as to. what is

meant by “international transportation”. Article 1. (2)

- defines it as follows:

__ “For the purposes of this convention, the expres-

sion ‘international: transportation’ shall mean any —

transportation in which, according to the contract

made by the parties, the place of departure and the |

place of. destination, whether or not there be a

4la

. Appendia B

break in the transportation or a transshipment, are

situated either within the territories of two High

Contracting Parties, or within the territory of a

single High Contracting Party, if there is an agreed

stopping place within a territory subject to the

sovereignty, suzerainty, mandate or authority of

another power, even though that power is not a

@ party to this convention.” . :

That Article provides that any transportation—scheduled .

or non-scheduled, common or private earriage;, charter

or otherwise—is “international” within the meaning. of

the Convention if the agreed-to transportation (1) is

between two nations which are parties to the Convention,

or (2) is “round-trip”, leaving from and returning to a

nation which is a party to the Convention, with an “agreed

stopping place” outside the nation (whether or not the

nation where the stop is made is a party to the Conven-

tion). France, the “agreed stopping place” on the sub-

ject flight, is a party to the Warsaw Convention, but the

Convention would apply even if France. were not a party,

because the place of departure (Atlanta) and the place

of termination (Atlanta) are both in the United States,

which has adopted the Convention. “Round-trip” flights

departing from and returning to the United States are

subject. to the Convention... Ross v. Pan American Air-

ways, Inc., 299 N. Y. 88, 85 N. E. 2d 880° (1949).

‘

Thus, reading Article 1, it is clear that the “transpor-

' tation” which is the subject of these actions was “inter-

national” within, the meaning of the Convention, and the

Convention applies to “any” and “all” such international

transportation by air.

“The plaintiffs in the pending suit have contended that

the Warsaw Convention does not apply to charter flights.

42a

a Appendia B

While it is true that this question has never been the

principal issue in any of the decisions decided by the

Courts in this country which this Court has been able.

to read, and the question seems to be novel, other courts,

where the issue could have been presented, have indi-

_ that, in a similar factual situation, Warsaw would

apply. ss ae

In Flying Tiger Line, Inc. v. United States, 170 F.

Supp. 422 (Ct. Claims 1959), the plaintiff, Flying Tiger,

had entered into a “Charter Agreement” with the United

States to carry cargo. One of its planes,. carrying

$67,159.91 in goods, was lost. The question was whether oo

the Warsaw Convention and its two-year limitation period.

applied. The Court said, at Page 423: ‘od

_ “There is no serious question as to the applica-

bility, in general, of the Warsaw Convention to the.

* transportation involved in this case.”

The, transportation there involved was “chartered”, yet

the Court recognized that-the Warsaw Convention. was

applicable “to the transportation involved”—charter trans-

portation. OF sxe

In the recent case of Mertens v. Flying Tiger Line, Inc.,

8 CCH Avi. Cases 18,023, which was a case from the

U. S. District; Court for the Southern District of New

York, the plaintiffs sued for the death of a passenger en

_ route from California to Tokyo aboard a chartered air-

craft, The United States Government had chartered the

plarie from the carrier, Flying Tiger, to ‘transport mili-

tary personnel. The plaintiffs sued to recover for the

wrongful death of their son, Lieutenant Frederic Thorn

Mertens, a passenger on a plane operated by the defend-

ant airline under charter to the United: States Govern-_

43a

| Appendia B

ment.» The plane was on a trip from California to J apan,

by way of Honolulu and Wake Island. On September 9,

1958, as it was nearing its destination near Tokyo, it

crashed into a mountain, resulting in the destruction of

the plane and the death of all those aboard, including -

Lieutenant Mertens. : | Bs:

' “The fatal flight which was the subject of this

litigation was an international flight pursuant to

the terms of the Warsaw Convention. The uncon-.

_troverted facts, the allegations of the complaint,

the pre-trial. order, and the prior agreement of the

parties’ made this a basic element of the case.” —

Plaintiffs argue that the Flight Agreement provision

that the charterer was the agent of the passengers was.an

attempt to create a direct contractual relationship be-—

tween carrier and passenger which they have contended

must exist in order for the Convention to be applicable.

No such direct contractual relationship is required by the

Convention,’ and in any. event the direct contractual re-

lationship existed here. !

The provision of the International Charter Flight Agree-

ment that the Charterer acted as agent for the passen-

gers was required by the CAB pursuant to statute. The

2 In an opinion filed on June 3, —_ dealing with a jurisdictional

eee ae he Wane Cone anid: the periieg axe in aguee-

ment that the Warsaw Convention is here applicable.”

8 See Ross. v. Pan ‘American Airways, Inc., 299 N. Y. 88, 85 >

2d 880; 885, where the Court said: “Furthermore, while the- Con-

vention speaks of transportation under a contract and requires de- ©

livery of a ticket warning of the any ~~ Ny is plain that the limi-

tation is one created by the Convention i » and is not the product.

of consensual arrangements between the parties”. ‘

tao

Appendia B

CAB regulates air carriers and through them, regulates

_ travel agents. handling.air transportation. The CAB-has

promulgated rules aiid regulations governing charter

flights. Those rules and regulations igen eee

Parts 295 (26 Federal Register 3628) and‘212 (23 Federal

CFR), both ‘of which are applicable to the flight here

under consideration. The United States Government pro-

hibits travel agents and others from chartering an air-

erdft at a charter rate.and then selling: tickets to the

traveling public [CAB Eeonomic Regulations, 14 CFR,

er §295.20* and 212. 1(b)]. Travel agents are permitted (as

>agents of the carrier) to sell airline tickets but only on

Scheduled trips at the regular fare established for com- °

mon carriage transportation available to all members of

the public. [Sec. 403(b) of the Federal Aviation Act,

49 U. S. C., See. 1373 (b)]. On the other hand, the CAB

allows individuals and pre-existing groups and associa-

tions, not formed ‘merely for the purpose of chartering an

airplane to make trans-atlantic charter trips at group

fares. (CAB Economic ‘Regulations, 14 CFR, Sees. 295.2 -~

and 212.1). 14 CFR, Sec. 212:1, provides that for pas-

sengers a chartee agreement may be made: es

(1) By a person for his own use;

’ (2) By a person (no part of whose business is

the formation of groups for transportation or so-

licitation or sale of transportation services) for the

‘ transportation of a group of persons as agent or

representative of such group;

« ~ CAB -Economic lation,’ 14 CFR, $295.20, PRES “A travel

agent may not assist the organization or assembly of a charter

group, oe A the sale of the air transportation to any individual.

Semliees of 7) oy enewine engage ie the oimiaistation of

the po Mns fight

45a.

Appendiz B *

(3) By two or more persons acting jointly for the,

transportation of such group of persons, or their

property. ; ; ;

“Person” is defined so as to include “association” or “cor-

poration” [49 U. S. C., §1301(27)]. Thus, the Atlanta °

- Art Association, an association not. engaged in transporta-

‘ tion directly or indirectly, could obtain group rate trans-

portation for its members, if the charter is made by the

Association as an agent or representative of such group.

The CAB required that such a charterer act as agent for

the. passengers, and the Flight Agreement in this case

was made in compliance with that rule of the CAB. With- |

out such an arrangement, under its rules, the CAB would

have disapproved the Charter Flight Agreement. here in-

volved. : :

_ From. the evidence, it is clear that the CAB prescribed

the form of and expressly approved the. charter agree-

ment‘here used, and this charter agreement included a-

provision clearly declaring that the Warshaw Convention

applied. When the Atlanta Art Association, through

its president, executed the International Charter Flight

Agreement as agent for the pasengers, a direct relation-

ship arose between Air France and each passenger. The

contract called upon Air France to furnish “air transpor-

tation”; thus, it was a transportation contract, a “con-

tract of carriage”. eee

; , Pad

Also, the International Charter Flight Agreement pro-

vided for the issuance of a ticket to each passenger, which.

would bind Air France and the passengers in a two-party

agreement. These tickets were issued and delivered to

the passengers approximately three weeks before the

flight was. initiated and, under the Flight Agreement,

the passengers obligated .themselves to be bound by the

46a

Appendia B-

tickets. When the tickets were issued and delivered, as. -

they were in this case, the requirement of the Flight Agree-

ment insofar as tickets were concerned was fulfilled. Each

ticket issued pursuant to the International Charter Flight

Agreement was a “contract of: carriage” between the

holder and Air France.

The Warsaw Convention itself says it shall apply to

“any” (Article 1, Paragraph 2) and “all” (Article 1, Para-

graph 1) air transportation for. hire between France and

the United States. The plaintiffs contend that the Con-

vention does not include. charter flights:. However, unless

there is a clear exception in the Convention removing

charter flights from its operations, Warsaw would apply. t

- Article 3 of the Warsaw ‘Convention provides as ‘fol-

lows: |

“(1) For the transportation of passengers the

carrier must deliver a passenger — which shall

contain the following particulars:

“(a) The place and date of issue;

“(b) The -place of departure and of. destina-

tion ;

“(c) The agreed stopping places. . .;

“(d) The name and ‘aaeress of the carrier or

carriers;

-“(e) A statement that the transportation is

subject to the rules relating to a estab-

lished by this convention.

“(2) The absence, irregularity, or loss of the

. passenger ticket shall not affect the existence or the

validity of the, contract of transportation, which ©

- shall none the less be ‘subject to the rules of this

convention: Nevertheless, if the carrier accepts

a passenger without a passenger ticket having been

‘47a

7 | Appendia B -

delivered he shall notbe entitled to avail him-

_ self of those provisions of this convention. which

exclude or limit his liability.” _

The undisputed evidence establishes that the require-

ment of ticket delivery was met in the instant cases. The

examination of the tickets themselves shows that they

contained all the necessary particulars specified in Arti- —

cle 3 of the Convention.

Even the absence of tickets would not rendey Warsaw

_ inapplicable. Warsaw applies to “any” and “all” trans-

portation by. aircraft for hire between the High Contract-

ing Parties. If a ticket had not been delivered, or if it

had omitted a. required provision, Warsaw would still

‘apply, but the limitation of liability would ‘not. ‘(Article

3, Paragraph 2). The facts Show that the proper tickets

were delivered; thus, a contract of direct carriage arose

between Air France and the various plaintiffs. ‘See Ross

v. Pan American Airways, Inc., supra.

In the Ross case, Mrs. Ross was injured in an air

accident while traveling during World War II as an

entertainer for the U.S.0.° The evidence in that case

showed that one Abraham, an employee of the U.S.O.,

made the arrangements for the transportation of all the

group of U.S.O. entertainers, and the United States Army

paid for the tickets. Mrs: Ross never personally received

her ticket but it was placed in front of her by “Abra-

ham at the airport -ticket counter along with her pass-

port. The tickets’ were returned to Abraham and the

entertainers were given a “slip of paper” (but not the

“ticket itself”) admitting them to the airplane. The

Court overruled Mrs.“Ross’ argument that she authorized

no one to either accept delivery of a ticket for her or

48a

Appendix B

to bind her to any limitation of the earrier’s liability,

holding that, at 85 N. E. 2d 884, 885:

“Whether or not this all added up, as a matter of

law, to a sufficient showing of authority in Abra-

ham, it can hardly be disputed that, when a ticket,

: bearing appellant’s name and all particulars as to

the intended route as well as a reference to thé

' Warsaw Convention limitation, was laid in front of

appellant on the table in the airport, she, by there-

* after boarding the plane as a traveler on ‘that

ticket, impliedly, if not expressly, ratified and

adopted what had been done by.the Armiy, and

later by Abraham, in taking out that ticket in her

name.

“Since the Convention itself, as a statute, grants

and mandatés the limitation unless ‘the carrier ac-

cepts a passenger without a passenger ticket hav-

ing been delivered’, there is no need for a carrier

who claims the limitation to show more. than the

delivery of an appropriate ticket and travel of the

passenger thereunder.”

When the carrier shows the delivery of the appropriate

ticket and the travel of the passengers thereunder, the-

Warsaw Convention applies. No direct contract between

the. parties is required. No overt consent to be bound,

other than travel on the ticket, is required. The presence

of third parties, such as Atlanta Art Association, is im-

material. The Warsaw Convention applies.

The Warsaw Convention contains only three exclusions.

The Treaty does not apply to claims for loss of mail

(Article 2), and it does not apply to transportation per-

(ao ns

49a

ey "Appendix B -

“formed by the United States (49 U. S. Stat. at L. 3013).

Clearly, neither of these exceptions is applicable here.

The third exclusion is found in Article 34, which pro-.

vides that:

__.“This Convention shall not apply to international .

transportation by air performed by way of experi-

mental trial by air navigation enterprises with the

_ view to establishment of regular lines of air navi-

gation, nor shall it apply to transportation per- —

formed in extraordinary circumstances outside the

_ normal seope of an air carrier’s business.”

Thus, Article 34 applies in only two instances: (1) to

“transportation by air performed by way of experimental

trial by air navigation enterprises with the view. to

establishment -of regular lines of air navigation”; and

(2) to “transportation performed _ in extraordinary cir-

cumstances outside the normal scope of an air carrier’s

business”. . .

Clearly, the first exception is not applicable here.

The second exception provided by Article 34 itself con-

tains two essential qualifications: ( a) “extraordinary cir-

cumstances”, and (b) “outside the normal scope of an

air.carrier’s business”. As shown by plaintiffs’ own alle- '

gations, neither essential existed here. There was nothing

“extraordinary” about this flight, and it was in the normal

_ seope of Air France’s business.

Thus, it can be seen that Warsaw applies to “any” and

“all” transportation by aircraft for hire between France

- and the United ‘States, excepting only those three matters

- expressly excluded: (1) Damage to mail; (2) Transporta-

tion performed by the United States Government; and (3)

P . ° rn 3

4 e

50a

Appendia B

Those situations specifically mentioned in Article 34. None

of these exceptions is a nena mae

This Court holds that, ‘enka: a siilial- situation in

the cases at hand, where the Atlanta Art Association

chartered an aircraft from Air France for the carriage

of passengers on a specific flight from the United States,

a High Contracting Party to the Warsaw Convention, to.

France, another High Contracting Party to the Warsaw

Convention, with return to the United States; where Air

France, the air carrier, owns, operates, and controls the

aircraft and, prior to departure, delivers proper tickets

to the passengers for their passage, the Warsaw Conven-

tion would be applicable, and the passenger or passengers

would be entitled to the presumption of liability contained

in the Warsaw Convention as against Air France, and

Air France, the air carrier, would be entitled to the

limitation. of liability also contained in the Convention

as against the passengers. :

As set out in the opinion above, the clear applicability —

_ of the Warsaw Convention to the facts of the. instant

suits has been demonstrated by reference.to the provisions

of the Convention itself and the court decisions dealing |

with Warsaw. This Court concludes that the language

contained in the Warsaw Convention is not ambiguous,

and deems it. unnecessary to resort to a discussion of the

legislative history of the Treaty. See United States v.

Shreveport Grain & Elevator Company, 287 U. S. 77, 77

L. Ed. 175; Hildalgo County Water Control and Improve-

ment District v. Hedrick, 226 F. 2d 1 (10), (C. A. 5,

all

Neither does the plaintiffs’ contention that the War- . ?

saw Convention is contrary to the state public policy of ~

Georgia have merit. In the Indemnity Insurance Com-

. ° -

. ‘“ -

5la .

Appendiz B -

pany of North America:v. Pan American Airways, Inc.,

58 F'. Supp. 338 (S.D.N.Y. 1944), the plaintiff argued

that the Warsaw Convention did not apply as a treaty

and also argued (as the plaintiffs have done in the instant

suits) that the Convention did not apply by agreement,

as part of the contract of carriage.

After finding the Convention itself to be applicable, the

Court went on to hold the defense based on the contract

limitations to be valid. Regarding the plaintiff’s con-

tention in that case that the contractual limitation of

liability. was ineffective, the Court held, at- Page 340:

“The ineffectiveness of the contract of transpor-

tation to limit defendant’s liability .is predicated

upon the invalidity or inoperativeness of the treaty.

. Since the premise fails the. argument must fall. —

The public policy against contractual limitation of

liability by common carriers . . .. must bow to the °

- overriding policy of the treaty. United States v.

Pink, 1942, 315 U. S. 203, 231, 62 S. Ct. 552, 86.

L. Ed. 796; United States v. Belmont, 1937, 301

U. S. 324, 327, 57 S. Ct. 758, 81 L. Ed. 1134.”

State public policy must bow to the overriding policy

of the Treaty. , |

In Garcia v. Pan American Airways, Inc,, 55 N. Y. S.

2d 317, 269 App. Div, 287 (1945); aff'd 295 N. Y. 852,

67 N. E. 2d 257, cert. den. 329 U. S. 741, 67 S. Ct. 79,

supra, the Court stated (55 N. Y. S. 2d at Page. 321):

“Inasmuch as the Convention, as a treaty, con-

stitutes part of the law of this land, overriding state

law and policies (U. S. Const., Art. VI; Wyman

v. Pan American Airways, 181 Mise. 963, aff’d 267

App. Div. 947, 293 N. Y. 878, cert. den. April 23,

52a

Appendia B+

1945, 324 U. S. 1029; United States v. Pink, 315

_ U..S. 203, 230, 231), its provisions supersede the

usual doctrine that the right and measure of re-

covery are governed by the lex loci and not by the

*. lew fori. It comes to this: One is not bound to

seek redress in the courts of this country. He may

submit to the jurisdiction of the foreign state and,

presumably, have his rights determined in accord-

ance with the law of that place. That is not our

concern. But if he institutes action here, the law

which we will apply is that set forth by the terms

of the Convention, even though it be inconsistent

with the law of the place. Comity is abridged to

that extent. . (The Titanic,- 233 U. S. 718; Royal

Mail S. Packet Co. v. Companhia de Nav. Lloyd

Brasileiro, 31 F. =. 757; The moe, 3 102 F. 2d

459). ”

In Amaya v. Stanolind Oil & Gas Company, 158 F.

2d -554 (C. A. 5, 1946), cert. den. 331 U. S. 808, 67 S.

_ Ct. 119, the Court of Appeals for the Fifth Circuit stated

at Page 556 :

a treaty lawfully entered into stands on the

same footing of supremacy as does the Constitu-

tion and Laws of the United States ... A treaty

must be regarded as a part of the law of the state

as much as are the. state’s own statutes and it may

override the power ofthe state even in respect

. of the great body of private relations which usually

fall within the control of the state.”

Georgia. public policy inde not control these actions.

Federal public policy controls, and Federal public policy .

authorizes limitations of liability in international trans-

‘portation by aircraft as shown by the, United States’ ad-

herence to the Warsaw Convention. See J. B. Effenson

53a

Appendix: B

Company v. Three Bays Corporation, 238 F. 2d 611 (C.

A.’5, 1956). The decision. of the Fifth Cireuit Court of

Appeals in J. B. Effenson Company v. Three Bays Cor-

poration, supra, is in point on the matter now ‘being con-

- sidered. Federal public policy governs the contracts in

these’ suits (the International Charter Flight Agreement

and the tickets). Federal public policy authorizes limi-

tations of liability in international air transportation by

aircraft, in the amount of $8300.00: (49 U. S. Stat. at L.

3019; Warsaw Convention, Article 22). Regardless of

the consequences, this Court is bound by the Treaty, the _

decisions, and the public policy established by the Treaty.

_ Reasoning similar to that used by this Court of Appeals

_in Effenson v. Three Bays, ‘supra, has been applied in a

Warsaw-contract case. In DaCosta v. Caribbean Inter-

national Airways, Limited, 4 CCH Avi. Cases, 17,792

(S.D.Fla., 1955), the United States District Court for

the Southern District of Floridahad before it @ case

..in which a decedent had been traveling between two points

in the British West Indies. Although the’ transporta-

tion was not “international” within the meaning of the

‘Warsaw. Convention, the ticket used by the defendant air

carrier contained a limitation of. liability, “the same as

"- that contained in the Convention for the Unification of

Certain Rules Relating to International Transportation

by Air Commonly called thé’ Warsaw Convention Treaty,

49 Stat. 3000”; The carrier relied not on the Convention

itself, but upon the limitation of liability provision in

the ticket. There, as here, the plaintiffs had attacked the

contract defense, arguing that state public policy would

not permit the enforcement of such a contractual limita-

tion. The defendant ‘contended that the terms of the

contract were the same as provided by the Warsaw Con-

vention, which the United States had adopted, and that '

state public policy could not overrule a contract provision -

54a

' Appendia B

which was the same as that provided for by the ‘Treaty.

In its decision, the Court stated, at Page 17,794:

- “Tt cannot be said that a separate covenant in a

contract, which corresponds with the amount estab- -

lished in a treaty, is unreasonable as to amount, or

that the theory of limitation of liability is against

the public policy of a state when, by treaty, the

theory of limitation of liability is a part of the law

# \ of the state under’ circumstances where the treaty

is applicable. This is not meant to intimate that

the treaty is applicable to this case; it is not. But,

- as to carriage foreign in nature, and not domestic,

the law of Florida\ recognizes the existence ofa

' theory of limited li bility and the reasonableness

‘of the amount stated in the defendant’s second |

defense.” \

‘The Court went on to say ‘that “the public. policy of - |

Florida is determined by the law of Florida and the Con-

stitution, treaties, and laws of the United States”. Recog-

nizing that the mere existence of the Warsaw | Conven-

tion overruled traditional state public: policy and created.

a public policy which allows, as to foreign air carriage,

~ a limitation of liability in the amount of the Warsaw Con- . [|

vention, the Court. held the contractual defense to be valid. =“

.Even when Warsaw is not applicable directly, it estab-

lishes a Federal public policy which affects state public

policy. It is not against U. S. public policy for parties

to agree between themselves to be governed by the same’

terms as are provided for in U. S. law by the Warsaw

Convention. The law of the United States (the Conven-

tién) permits air carriers engaged in international trans-

é portation to contract for limited liability. What the

wom Treaty allows, state public policy cannot disallow. By

con the same token, it ‘is not against U. S. public policy for

France (the place of the accident) to have, and for this

55a

Appendia B

. Caurt to give effect to, an applicable law (Law No. 57-259

of March 2, 1957) which provides the same limitation of .

liability as the Warsaw Convention. ,The law of France

provides that the rules of the Warsaw Convention apply

to all aviation accidents occurring in France. This French

law limits the liability of the carrier in the same man-

ner and in the same amount as does Warsaw, which is

the law of this land. If French law were against our .

public policy, then the Warsaw Convention would be

against our. public policy. However, the French law is

‘in complete harmony with our public policy.’ Both the

United States dnd the Republic of France have adopted

the Warsaw Convention. |

For the redsons stated above, the plaintiffs’ motion

for partial summary judgment with «respect to Air

France’s three separate and independent defenses—(1)

the Warsaw Convention, (2) the contracts: between the

parties, and (3) the French Law—is hereby denied. This

partial summary judgment is to control the numbered

cases listed in the footnote below.’ .

This the 6th day of May, 1964. - :

(Signed) LEWIS R. MORGAN

LEWIS R. MORGAN

United States District Judge.

5 Civil Action No. 8286 Civil Action No. 8344

_** 8287. 8345

Pa 8288 , 8346

8289 8347

8290 8348

- 8291 ° 8398

8292 * 8399

8293 8401

8294 8402

8295 8403

8296 8404

8305 8405

8340 8406

8341 8407

> ~° 8342 8408

8343 8409

56a oe.

| Appendia B \.

/% » .

MOTION TO AMEND ORDER

Filed: May 8, 1964

: Gai now the plaintiffs, Bates Block, et, al., and move

the Court to amend its order of May 6, 1964 in the

- above captioned case, which order denied plaintiffs’ mo-

tion for partial summary judgment, by stating that said -

order involves a controlling question of law which is

determinative of a basic issue in the case and as to which

there is substantial ground for difference of opinién, and. .

. » that an immediate: appeal from the order may materially

advance’ the ultimate termination of the litigation.

Respectfully ‘submitted :

(Signed) WILLIAM H. SCHRODER >

(Signed) HUGH DORSEY

(Signed) HERBERT RINGEL

Attorneys for Plaintiffs’ -

57a

Appendia B ’

ORDER

Filed: May 11, 1964

United States District Court -

-Northern District of Georgia

Atlanta Division

Bates 7 Et bs

Plaintiffs

vs. Civil Action Nos. 8286, et al.,

Compagnie Nationale Air France, ‘

Defendant

The Court having on May 6, 1964 entered an order

in the above captioned case deriying plaintiffs’ motion

for a partial summary judgment; |

NOW, THEREFORE, pursuant to 28 USCA, Section

1292(b), said order is amended by adding as a final

paragraph thereto the following statement:

“The Court is of the opinion that this order in-

volves a controlling question of law which is deter-

minative of a basic issue in the case and as to which

there is a substantial ground for difference of

opinion, and that an immediate appeal from this

_ order may materially advance the ultimate termina-_

tion of the litigation.”

ITIS ORDERED. |

_ This 11th day of May, 1964.

(Signed) LEWIS R. MORGAN

LEWIS R. MORGAN

United States District Judge

58a

APPENDIX C.

| - Ly THE

UNITED STATES COURT OF APPEALS

For tHe Firtra Crrcurr

No. 21609.

Bates Bock, et al., ae

Appellants, |

Versus :

Compacnre Nationate Am France,’ |

Appellee.

Appeal from the United States District Court for the

' Northern District of Georgia.

(November 8, 1967.)

Before JONES and WISDOM, Circuit Judges, and

BREWSTER, District Judge. |

i WISDOM, Circuit Judge: June 3, 1962, an Air France

Boeing 707 jet liner beginning the final leg of an Atlanta-

Paris-Atlanta “Jet Trip to the Louvre” crashed at Orly

Field, Paris, France. Everyone aboard was killed. The

‘ ‘122 passengers were all members of the Atlanta Art

Association. ‘February 2, 1962, the association had en-

tered into an “International Charter Flight Agreement”

with Air France for the airline to furnish the plane for

the flight at the cost of $36,000.

59a

Appendia C

The plaintiffs instituted forty-five actions against Air .

France for the deaths of sixty-two of the passengers:

These actions were consolidated under Fed. R. Civ. P.

42(a) for a determination of liability, separate trials to

be held on the issue of damages. .

Air France asserts three defenses: (1) that the flight

was governed by the Warsaw Convention, ratified and ad-

hered to by the United States, limiting recovery to a

maximum of $8291.87 for each person killed,’ (2) that the’

contract of carriage (as set forth in the Charter Flight

Agreement or in the ticket or in both) explicitly incorpo-

rates by reference the Warsaw limitation; (3) that the

law of France, where the accident occurred, governs the

case, and under French law the Warsaw limitation is

applicable. }

The plaintiffs contend: that the Warsaw Convention

does *not apply to charter flights. Accordingly, they

1 The Warsaw Convention, officially: entitled “A Convention for the

Unification of Certain Rules Relating to International tion

by Air” was signed by the sspepecniaives of 23 countries at Warsaw,

oland, October 12, 1929. . About ninety countries now adhere to it.

The United States did not parsewete in the Conference. June’ 15,

1934, however, the United States Senate advised adherence .to the

Convention and October 29, 1934, President Roosevelt popes ad-

herence. See 49 U.S. Stat. at L. 3000-3026, p. 3013 (1935).’

November 15, 1965, the State Department deliv a Notice -

governments. Air Frarice sign

the parties in this case.

2 The plaintiffs here do not contend that the decedents failed to

receive proper delivery of the tickets or proper notice of the Warsaw

limitation of liability. oe. .

For limitation of liability to apply, the s ticket must

state that the flight is subject to the provisions of the Convention.

Art. 3(2); Art. 3(1)(e).. e ticket must be delivered in time and

60a.

Appendix C

filed a motion for a partial summary judgment under

Fed. R. Civ. P. 56 seeking a judgment dismissing and strik-

ing each part of the defenses that asserts the applicability

of the Convention. The district court denied the motion.

Block v. Air France, N.D.Ga. 1964, 229 F. Supp. 801. The

court found: a8 ;

“Under the terms of, the Charter Flight Agree-

ment Air France furnished all the*crews, fuel, ete.;

and no passenger was to be carried unless such pas-

senger had been issued a ticket by Air France. The

International Charter Agreement was made subject

to the approval of the Civil Aeronautics Board.

.. . From the evidence now presented, it appears -

that there are no substantial differences as to the

facts surrounding the arrangements of the ‘Jet Trip

to the Louvre’.”

(Footnote continued)

in such a manner as to enable a’ passenger to take out insurance.

Mertens v. Flying Tiger Lines, Inc., 2 Cir. 1965, 341° F. 2d 851;

Warren v. wh gg Mi Lines, Inc., 9: Cir. 1965, 352 F. 2d 494. The

Second Circuit has recently held that the Convention requires not .

only delivery of the ticket (Art. 3(2)) but actual notice of the limi-

tation (Art. 3(1)(e)); liability‘limitations in “Lilliputian print in a

thicket of ‘conditions of Contract’” frustrates the pu of the de-

livery requirement. Lisi v. Alitalia-Linee Aeree Haliane, S. p. A.,

1966, 370 F. 2d 508. By agreement among 28 American and foreign

airlines, each passenger must now receive 2 notice printed in ‘ten-

point type advising him of the liability limitations. CAB Press-

Release, No. 66-61; 382-6031, May 31, 1966. In ‘November 1961 The |

Atlanta Art Association began working with the American Express

Company to arrange a' charter flight to Paris. The charter, executed

February 2, 1962, . provides: gee furnished herein is subject

to the rules relating to liability established by the [Warsaw] n-

vention. .*. . Charterer declares that he has. taken note of the pro-

visions of said tariffs, conditions of coeriage and rules and regula-

tions, and undertakes to bring the notice of passengers and shippers

participating in the charter flight under this Agreement.” The tick-

ets, each containing similar language and each marked “Chtr Con-

tract”, were delivered to the passenger on April 17; 1963, three weeks

. before the departure May 9 and six weeks before the accident. See

any wr! , Recent elopments in The Warsaw Convention, 33

~ Air L. & m. 0-0 @ 0 00ers L$ .

6la

Appendia C_

The court correctly limited the issue:

“This Court heretofore, in various hearings, has

noted that there are various possible arrangements |

by which.a charter flight might be made and the

question therefore is not ‘Does the Warsaw Conven-

tion apply generally to charter flights’, but the ques-

tion is ‘Does the Warsaw Convention apply to this.

particular charter flight?’ ”

The court held:

“[U]nder the factual situation in the cases at

hand . . . where Air France, the air carrier, Owns,

operates, and controls the aircraft and,. prior to |

departure, delivers proper tickets to the passengers

for their passage, the Warsaw Convention would —

be applicable, and the passenger or passengers

would be‘ entitled to the’ presumption of liability

contained in the Warsaw Convention. as against

Air France, and Air France, the air carrier, would

be entitled to the limitation of liability also con-

tained in the Convention as against the passengers.”

We affirm. The Warsaw Convention applies to the

international transportation of passengers under a con-

tract of carriage on a “voyage” charter flight. The’ plain-

tiffs’ recovery of damages in the instant cases therefor

is limited to the amount allowed by that treaty. We find

it unnecessary to pass upon Air France’s other defenses.

i “

_ . At the time the Warsaw Conference was held, October

1929, civil aviation was in its infancy.* Lindberg had

$ “The total airline operations in the five-year period 1925 to 1929— |

senger miles. The fatality rate, was 45 per 100 million passenger

miles. This compares with the rate of 0.55 fatalities per 100 million

62a

Appendix C

flown the Atlantic only two years before. The sole in-

ternational air carrier in the United States operated

‘flights between Havana and Key West. The United

States: declined an invitation to attend the Conference,

although it sent two er John Ide and McCeney

Werlich.

The Warsaw Convention | was the result of sutensive

preparatory work, commencing with the first Conférence

Internationale de Droit Privé Aérien, held in Paris in

1925. The Paris Conference appointed a committee of

experts in international air law, the Comité Internationale

Technique d’Experts Juridique Aériens (Citeja), officially

translated in United States documents as “International

Technical Committee of Aerial Legal Experts”. Citeja

has had primary responsibility for preparing draft con- ._

ventions submitted to various conferences on international

air transportation.° American observers were present at

the Paris Conference and at meetings of Citeja during

"the years 1927 through 1930. From 1931 on, the United

” States appointed official representatives to Citeja. The

Paris Conference prepared a preliminary draft convention

on the liability of air carriers and assigned certain topics.

for further study to Citeja. One of these topics was

(Footnote continued )

passenger miles in 1965. 1965 Annual Report of the ICAO Council

to the ICAO Assembly 13. The larger airliners could carry 15 to 20

passengers at cruising speeds of about 100 miles per hour. and over

stages of about 500 alias, The. most advanced and popular Ligne:

States aircraft, the oo Pip which cafried six and

a pilot, had a cruising speed ut 120 miles per hour and as range

‘of about 500 miles. ... .” Lowenfeld and Mendelso The United

States and the Warsaw ‘Convention, 80 Harv. L. Rev. 497, 498 (1967).

¢° Wright, The Warsaw vention’s Damage Limitatio 1957

Clev. Kt . Rev. 290-91. ™ -

& See Ide, The H and Accomplishments of the Citeja, 3 J.

Air L. & Com. 27 (1932). Mr. Ide was the United States observer ~

at Citeja (1929-31) and at the Warsaw Conference.

63a

Appendix C

“location des aéronefs”, a generic term.meaning the hiring

and renting and, sometimes, chartering of airplanes.*

‘The Conference achieved its ‘two primary ‘objectives:

(1) uniform rules relating to air transportation doc-

uments (passenger ticket, baggage check, and air waybill) ;

(2) limitation of the carrier’s liability for an airplane ac-

cident. In accomplishing the second objective, the Con-

ference recognized the need for a quid pro quo by estab-

lishing a presumption of the carrier’s ‘liability, thereby

shifting*the burden of proof from the passenger to the

carrier. (Article 20.’) Secretary of State Cordell Hull, in

transmitting the Warsaw Convention to the United States

Senate in 1934, explained:

_ “It is believed that the principle of limitation of

liability will not only be beneficial: to passengers and

shippers as affording a more definite basis. of re-

covery and as tending to lessen litigation, but that

_ © The plaintiffs and the defendants dispute the translation’ of “lo-

cation des aéronefs”. - The literal meaning is “hiring of aircraft”.

' The plaintiffs’ translator, who was also used by the defendant, trans-

lated the term as “chartering of aircraft”. Later, by’ affidavit, he

averred: “Fhe most accurate translation of the French word ‘loca-

tion’ into English is ‘hiring’, ‘leasing’ or ‘renting’ . . : . Correct

and proper translation of the French word ‘location’ is not ‘charter-

ing’.’ owever, in the legislative history of the Warsaw Convention,

_ the term was sometimes used to include chartering and sometimes.

used interchangeably with “affrétement” (chartering) and “charte”

(charter). British lations define “charter service” as air trans-

rt service “under a contract of hire”. Civil. Aviation. (Licensing) -

gulations, 1960, No. 2-2. The Civil Aeronautics Board defines

“charter trip” as: “air. transportation performed by an air carrier

- - » Where the entire capacity of one or more aircraft has been

engaged for the movement of persons ... or .. . property on # time

mileage or trip basis”. Title 14, Part 207, E R-419, 29 F.R. 13249,

Sept. 24, 1964. , . Po

7 Article 20. Exemptions.

(1) The carrier shall not be liable if he proves that he

and his agents have taken all necessary measures to avoid the dam-

age or that it was impossible for him or them to take such measures. .-

(2) In_ the rtation of goods and baggage the -

carrier shall not, be liable if he proves that the was oc-

casioned by- an error in piloting, in the handli of aircraft,

or in navigation and that, ‘in other and his agents

have taken all necessary measures to avoid the ‘

Appendic C- eee

it will prove to be an aid in the development of

international air. transportation, as such limitation

will afford the carrier a more definite and equitable

basis on which to obtain insurance rates, with the

probable result that there would eventually be

a reduction of operating expenses for the carrier

and advantages to travelers and shippers in the

way of reduced transportation charges. . . .The —

principle of placing the burden on the carrier to

show lack of negligence in international air trans-

portation in order to escape liability, seems to be

reasonable in view of the difficulty which a pas-

senger has in establishing the cause of an accident

in air transportation.”

II.

On its face, the Warsaw Convention seems to cover all

international ified by air, without any limitation what-

ever.

A. Article 1(1) states the scope of the treaty: &

“This Convention shall apply to all international

transportation of persons, baggage, or goods per-

formed by aircraft for hire. It shall apply equally .

to gratuitous transportation -by aircraft performed

_ by an air transportation - enterprise. - ae

~ added.) |

Article (1)(2) defines “international cnmndatuainal

“For the purposes of this convention, the: expres-

sion ‘international transportation’ shall méan any

transportation in which, according to thé contract

made by the parties, the place of departure and

.® Senate Comm. on Foreign nogeay 3 Message from the. President .

of the United States Transmit — for the Unification -

of Certain Rules, Sen. Exec.. Dee o. G, 73d Cong., 2d Sess. 3-4

(1934).

65a -

| ° Appendix C

the place of destination, whether or not there be

a break in the transportation or a transshipment,

are situated either within the territories of two

High Contracting Parties, or within the territory of

a single High Contracting Party, if there is an

‘agreed stopping place within a territory subject

to the sovereignty, suzerainty, mandate or authority |

of another power, even though that power is not

a party to this convention.” .

The district judge found Article 1 so clear that he cone

cluded, “The language contained in the Warsaw Conven-

tion is not ambiguous, and [the court] deems-it unneces-

sary to resort to a discussion of the legislative history

of the Treaty.” — Ee

B. The Convention makes only three exceptions te the

wide sweep of Article 1. ‘None covers this Air France °

charter flight. First, Article 2( 2) excludes “transporta- —

tion. performed under the terms of any international postal

agreement”. Second, Article 34 excludes “international |

transportation by air performed by way of experimental

trial by air-navigation enterprises with the view to the

establishment of regular lines of air navigation”. Thirg,

Article 34 also excludes “transportation performed in ex-

traordinary circumstances outside the normal scope of an

air carrier’s business.” - ,

The third exception is the only one that, arguably, might

encompass the Air France flight. - This provision, how-

® This is an instance where the English translation is awkward

and it is helpful to read the provision in the original French version:

on one carrier, but to the general nature of aerial exploitation”.

See Sundberg, Air Charter: A Study in og Development 261 n.83

(Stockholm 1961), made part of the record low. ae

66a

“Appendia ie C

’ ever, was intended from the start to have a very narrow

* application. In placing the draft convention before the

conference, Henri De Vos of Belgium, Rapporteur of the’

Conference, gave as an example of an “extraordinary”

situation a rescue mission sent tdlbpick up passengers and

_ baggage from an earlier flight that had been forced down.

He. described such a rescue flight as one. that “could not be

made under normal conditions.””° Professor Georges Rip-

ert, delegate from France, author of Article 34, explained

that; in such exceptional circumstances certain require-

' ments. established by the Convention, such as the delivery

of a passenger ticket and baggage check, could not be

‘ observed." Sevéral delegates:complained that this pro- —

vision would open a dangerous ‘loophole in the Conven-

tion.” To allay their fears, Professor Ripert stressed that

this exception was not, a broad loophole.’* Just before the -

conference was to take a final vote on Article 34, Amedee

Giannini; head of the Italian delegation, who had cau-

tioned Ripert earlier about the dangers inherent in the

provision," emphasized narrowness of the provision. a

_ The parties to the treaty and their delegates to the

_ Conference were we]l aware that the Convention was to

apply to.a developing industry. See Section IV C of

this opinion.- Although charter flights such as the one

before us might once have been rare, they were never

extraordinary in the sense that they were “outside the

10 TI Conférence Interhationale de Droit Privé Aérien, Oct. 4-12,

Warsaw, Procés-Verbaux p. 58. > ;

11 Ibid.

"42 See statements by Sif Alfred Dennis of Great Britain, id. at 68,

and Sabanine of Russia, id. at 58.

18 See the acumeua between Ri rt and eecmered of Italy, id.

at 58. f mae .

1 =. Id, at 58.

16 = Jd. at 145.

_- What was true of air taxi flights in 1933 is

67a

Appendix C

; Ww

normal scope of an air carrier’s business”."* Night flights

and transatlantic flights’ were “exceptional” in 1929, and ~

Jet flights unknown, but there is no question as to the ap-

. plieability of the Warsaw Convention to a transatlantic

jet flight at night. - )

_ ©, Had the Warsaw framers intended to create an

exception for charter flights -if is difficult to see why they

did not include a specific provision in the Convention,

such as they did in Article 2(1) for flights conducted under ,

the terms of any: international postal convention and in

Article 34 for experimental or extraordinary flights. There

is no valid reason to except all charter flights. In some

charters, perhaps, the responsibility is so divided as to.

create a,problem.in determining who .is the carrier for

purposes of the Convention, but where this problem does

- hot exist, as in a voyage charter where the owner (airline)

is also the operator, there is no. practical difference be-

tween a charter flight‘and an ordinary scheduled commer-

cial flight, | aviar . fae

Looking to the realities rather than to @raditional con-

cepts, which vary from country to country, air charters

may be divided into basic types.” (1) In a “bare-hull”,

76 “As early as 1933, Blanc-Dannery pointed out that air taxi

flights were not properly in the Article 34 ca of operations.

‘Toutes “les ae ee aériennes, 4 la demande ’un client, le font

conduire 4 l’endroit. ot il désire. On ne peut dire que ce sont des

transports réguliers et pourtant ils rentrent bien dans le cadre’ de

l’exploitation aérienne. normale.’ La Conventi: de Varsovie et: les

régles due rt aérien international, thés® Paris 1933 p: . 20.

inly true of duster,

flights today. Whatever the of the air

cess and volume business exc ude the application of Article. 34.”

Sundbers Air Charter: A Study in Legal Development 261-262 (Stock- .

olm .

3 to 9 of the documentary ‘chapter.” Sundberg 263.

17 The three categories of charter are widely i Grénfors,

Air Charter and Warsaw Convention 15-16 ( inus Nijhoff,

' The Hague 1956); Drion, Limitation of Liabilities in Internati

Air Law Hague 1954); Sundberg. ae

onal

68a

=: Appendix C

“hire”, or “lease” charter the owner (airline) merely sup-

plies a plane, withgut a crew, to a charterer, who may use

it where and when-he pleases; the charterer furnishes the

crew, and pays the expenses of operating the aircraft.

' (2) In a“time charter” the airline provides the charterer

* with an equipped plane and crew for a specific period of.

‘time to use as the charterer wishes. (3) In a “voyage

charter” the owner charters his fully equippéd plane and

crew for a predetermined voyage. In a voyage charter,

such as that entered into by Air France and the Altanta |

Art Association, ‘the owner controls and operates the air-

craft. In effect, the middleman is eliminated, except for

purposes of negotiating the charter. Although there are

these three basic types of air charters, somewhat analo-

gous to maritime charters, the degrees of control, discre-

‘tion, and responsibility of the charterer can vary enor-

mously from case to case, from the extreme bare hull char-

ter arrangement in which the airline relinquishes total con-

trol all the way to the charter in this case where. the

charterer’s role is totally unconnected with the physical ©

operation of the flight. If the points of departure, stop-

ping places, and destination of a flight are not stated in

a charter, the charter flight would not come within Article

1(2). But there is nothing in Article 1 or in any other.

article in the Convention that would bar applicability of

‘Warsaw to a voyage charter of the kind entered into

between Air France and the Atlanta Art Association.

D. The title of the Convention is modest. It. waiteete

to apply only to certain rules relating to air transporta-

.. tion.- As Sundberg observes, therefore: “On points not

covered by unified rules [of the Convention] one would.

then..expect to find conflicts of law rules. The Warsaw

'. Conference, however, agreed upon conflicts of laws pro-

visions only in five special cases. . . . The discrepancy is

explained by the. utter hostility which was displayed by

¥ 69a

Appendix C \

the Conference relating to conflicts of laws solutions.’"*

With this “basic tenet” in mind, the Conference drew the

Convention “in French with a single copy”. (Article

36.) The Statutes at Large for 1934 indicate that it was

the French text to which the United States adhered in

the instrument the United States deposited in the archives

of the Ministry for Foreign Affairs of Poland. 49 Stat.

‘8013. (1934). 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 “{u]niformity may be main-

tained 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.

ITT.

The Warsaw Convention does not expressly mention

_ charters or charter flights. The plaintiffs argue that even

if there is no specific provision excepting the charter

flights from the coverage of the Warsaw Convention, the

_ Convention still does not apply to the Air France-Atlanta

flight because coverage is premised upon a direct con-

_ tractual relationship which, the plaintiffs contend, does

not exist here. The gist of this argument is that Article

1 refers only to “transportation . + + according to the

contract” between the parties; that the Warsaw Conven-

18 ‘The quotations in this paragraph are from Sundberg 242-249.

19 However, on June 15, 1934, the text that was read to the

Senate, and to which the resolution of ratification was directed,

was a text in English originally published in a Treaty Informa-

tion Bulletin of the Department of State in March 1934. 78 Co

Rec. -#115 77-82 (19384). :

70a

Appendix C

ion assumes the existence of an ordinary two-party con-

tract of carriage between the airline and the passenger;

- that since this flight resulted from a charter between Air

France and the AtYanta Art Association, the requisite

contractual relationship between the airline and the pas-

sengers does not exist.

The soutiealiity of the pears undeniably is pre-

mised upon ‘a contract, but on a contract of a particular

kind. It is based on a contract of carriage that arises

from the relationship between a: “carrier” and the pas-. -

sengers.” This contractual relationship requires only that.

the carrier consent to undertake the international trans-

portation of -the passenger from one designated spot to

another,” and that the passenger in turn consent to the

20 - Lureau, La msabilité du Transporteur Aérien 84 (Paris

1961) ; Calkins, m™" ause of Action Under the Warsaw Convention,

26 J. Air L. & Com. 217, 219-20 (1959); Riese and Lacour, Précis

de Droit’ Aérien 233 ( Paris 1951); Goedhuis, National Airlegislations

- and the Warsaw Convention 133 (The Hague 1937); Sullivan, The -

Codification of Air Carrier Liability by International Convention, 7

J. Air L. & Com. 1-2 (1936); Coquoz, supra note 16, at 68, 99.

/ 21 “The draftsmen of the Convention intended to create a right

of action based on the contract of carriage, . . . Even _a cursory

reading of this text will convince the reader that the French law

of contractual liability of the carrier was intended to be the govern-

ing basis of the convention. Thus Article 21 establishes the period.

during which the conyention is to apply. . Article 26 also dem-

onstrates that a contractual right of action under the convention was

intended. The first clause of the paragraph reads—‘in case of acci-

dent, loss, damage or delay, thee liability action may not be instituted

against the carrier — on the basis of this convention.’ (Emphasis

supplied). Outside rights in tort were excluded subject to. one ex-

ception. This is found in the material which immediately follows

-in draft Article 26. Today we. refer to a= as the ‘willful misconduct’

provision, which makes inapplicable onl rovisions of the Con-

vention as exclude or limit liability. In ‘his ft, however, it was

ite clear that all claims “were to be under the convention unless

e damage arose from an ehatignal and illegal act as to which

the carrier was liable. In short, actions arising out of * iliful mis-

conduct of a carrier were to be based 6n national law rather than

on the contract. . The goal of unification was sought with un-

remitting zeal—that the intent was to’ supply that cation by a

contractual right of action under which liability was not to be ab-

——————

71a

Appendiz C /

oa’. : a |

undertaking. In a charter situation the passenger’s cause

of action under the Warsaw Convention is based on this

contract. of carriage (the sale jand purehase of trans-

portation), not on any tort theory.

We look now to the role. contract plays ‘in achieving

the objectives of the Conference. We note, in passing,

that the underlying concepts are civilian in origin and that

much of the difference ‘in views among the jurists on

Citeja and the delegates to Warsaw is attributable to the

conceptual differences in the laws of France, Italy, Ger-

many, and the Scandinavian countries,” to say nothing of

the difference between the civil law and the common law.

(Footnote continued)

solute in case of non-performance, but measured by the negligence of

the carrier.” Calkins, supra note 20, at 217, 218, 223, 236.

The Code Civile of France definés a contract simply:

“Art. 1101.- De contrat est une convention par laquelle une ou

plusieurs personnes s’obligent, envers une ou plusieurs autres, ‘a

donner, 4 faire ou a ne faire quelque chose.” (“A contract

is an agreement by which ne or seve persons’ bind themselves

towards one or several other persons to give, to do, or. not to os

do a certain thing.” Cochard tr.)

“Art. 1108. Quatre conditions sont essentielles pour la validité

d’une convention:

Le consentement de la partie qui s’oblige; "

Un objet certain qui forme la matiére de l’engagement;

Une cause licite dans Vobligation.” (“Four conditions are. és-

22 There may be as great a difference ‘between the laws of France

and Italy as between -the laws of. France and the United States.

72a

Appendix C

A. It is clear that the framers did not intend to endorse

or encourage bargaining between the parties. The Con-

vention assumes the’ passenger’s inadequate ability to

-bargain.* The Conference debates contain many allusions

to the bargaining weakness of the passenger.” Within

_ the context of-the Convention the only issue which the

_ parties are permitted to negotiate is the, raising of the

liability limitation, and here the Convention. does not refer

- to “the contract” as it does in thirteen other provisions

but rather speaks of a “special agreement” or, in the

original and official French version, a “convention spé-

ciale”.”* |

(Footnote continued)

have or possess the status of simple contracting parties and the car-

rier undertakes to carry the passengers or merchandise with absolute

security throughout the journey. Such obligation even without being

specifically stipulated subsists, and in case of non-performance places

the -carrier in the role of a contractual debtor and the passenger as

‘his creditor.” Rigalt, Principios de derecho Aero 124 (1939). See

Calkins, supra note 20; note 22. . :

23 ~=Articles 1(2), 1(3), 3(2), 4(4), 5(2),. 11(1), 12(1), 14, 18(3),

(22(1), 28, 28(1), 30(1), 32, 33.

24 See Article 23: “Any provision tending to relieve the carrier

of liability or to fix a lower limit than that which is laid down

in this convention shall be null and void, but the nullity of any

such provision shall not involve the nullity of the whole contract,

which shall remain-subject-to the provisions of this convention.”

25 See, for example, the comment of Georges Ripert of France:

“Well, then, in reality, this convention creates, against the air carrier,

‘an exceptional regime, for, in most of the countries of the world,

the contracts of wmapert are concluded under the regime of free-

dom. The carrier is free to insert in the contract clauses which ex-

,clude or diminish his responsibility, for merchandise as well as. for

paenenenes. You can imagine that they did not fail to-do it, and

presently. many aerial navigation Lape = ag operate under this regime

of contractual freedom and, in iy ce, in fact, they are not liable.”

II Conférence Internationale 32-33. :

See also statements by Sabanine of Russia, p. 27;—Riese of.

Germany, p. 85; Ripert, pp. _86-87._—__ —__—-_

26 Article 22(1): “Toutefois par une convention spéciale. avec le

rteur, le voyageur pourra fixer une limite de responsabilité

plus élevée.” + ‘

er ee

in aR Mins act i aie ha I

73a

Appendix C

Since the Convention does not anticipate bargaining

between the two primary parties, it does not limit par-

ticipation in the negotiation of the contract to these two.

a contract in many places, but it never once describes this

“eontract solely in terms of the passenger and the carrier.

There is no Warsaw objection therefore to a third person

acting as agent of passengers or entering into a contract

with the carrier for the benefit of passengers (“stipulation

pour autrui”).

The plaintiffs make much of the fact that Article 1(2)

does contain a reference to'“the contract made by the

parties”. But this reference ‘is in a provision defining

“international transportation”, for purposes of: the Con-

vention, as being dependent upon the places of departure

and arrival agreed tp by the parties. The object of this

requirement is that the applicability of the Convention

’ to the flight be known in advance and not be dependent

upon the place where. the plane might happen to crash-

land. In its English translation Article 1(2) reads as

follows: bs |

(2) For the purposes of this convention; the ex-

pression “international transportation” shall mean .

any transportation in which, according to the con-

tract made by the parties, the place of departure

and: the place of destination, whether or not there

be a break in the transportation or a. transship-

__ment,-are situated either within the terrifories of

two High Contracting Parties, or witli 1s the ter-

ritory of a single High Contracting Party, if there

27 “One must consider as an airplane p r the person whom

_ the carrier has engaged, by means of a contract of transportation,

to carry from one place to another on an airplane. Thus, the stow-

- away could never be termed a passenger . . . and demand that the

Warsaw ‘Convention be applied. It is not indispensable that the pas-

senger have peare’ perereen as a contracting party. The contract

could have been concluded in his favor a third party.” See Coquoz,

supra note 16, at 87. (Emphasis. supplied.)

74a

Appendia C |

is an agreed stopping place within a territory sub-

. ject to the sovereignty, suzerainty, mandate or

i _ authority of another power, even though that power

is not a party to this convention. Transportation

without such an agreed stopping placé between ter-

ritories subject to the sovereignty, suzerainty, man-

date, or authority of the same High Contracting.

Party shall not be deemed to be international for ‘

the purposes of this convention. (Emphasis added.)* —

This is a poor . translation of the original and official

French version, which also states that both parties need —

agree to the stopping places but which does not assert or

imply that this agreement need. be made as part of a

-single and direct contract. Instead, of the language, “ac-

cording to the contract made by the parties”, the French -

‘version reads “d’aprés Jes stipulations des parties”. Thus

. the French version refers to the stipulations (conditions).

agreed to by the parties rather than to “the contract

made by the parties”. The French version therefore would

\28 “2) . Est qualifié ‘tzanmpest interactions! au pose ‘de la présente

Convention, tout transport dans lequel, d’a aprés les stipulations des

parties, le point de départ’ et le point de destination, qu’il y ait ou

non interruption de ‘transport ou_transbordement, sont’ situés “soit

sur le territoire de deux Hautes Parties Contractantes, soit sur le

territoire d’une seule Haute Partie Contractante, si une escale est

prévue un territoire soumis a la souvernaineté, & la suzeraineté,

“au mandat..ou & Vautorité-d’uné autre Puissance meme non Con- :

tractante. Le transport sans une telle escale entre les territoires -

. goumis & la souveraineté, a la suzeraineté, au mandat ou & l’autorité

international au sens de la présente Convention.” Cf. “Paragraph

2 of-article 1, in its reference to ‘the contract. made by the parties’

means, obviously and on its face, not that the convention applies only

when the parties contract for its application, but that it- 6 gr

(unless by special arrangement ar pe w oo ‘according | to

the contract made by the parties,’ = on of departure and the

place of ultimate destination are Seki e territories of two of the

nie ‘Contracting Parties’ or both within the territory of a ‘single

Contracting Party’ with certain agreed stopping places. else-

i Put another way, that means that the vention becomes

- the law.of the carriage when the ‘contract’ of the parties provides

for ange between certain described termini. When such is the

contract, then the Convention has automatic full ~ by its own

terms and not because the parties have so Ross v. Pan

American Airways, 1949, 299 N. Y. 88, 85,N. E. 2d 880, 885.

75a

Appendix C

include the situation where both main parties agree to

the same route but do so through a third party such as

the Atlanta Art Association. ; |

It is also clear~that by referring to a contract the

Convention does not intend to establish the prerequisite

that consideration, in a common law sense, must flow both -

ways between the two parties before their relationship

ean come under the Convention’s control. Even if. the

_ passenger should make no promise to pay there would still

be a contraet of transportation, supported by cause, in a

civilian sense.’ Article 1(1) explicitly declares that the

Convention “shall apply equally to gratuitous transporta- |

tion by aircraft performed by an air transportation en-

terprise.”* Therefore, all that is needed to establish the

requisite contract is a promise, an undertaking, on the

part of the carrier to transport the passenger, and the

consent of the passenger. 7 |

The contract plays a role fundamental to the objectives ~

of the Warsaw Conference. The. obligations arising from

out the Conference goal that the rules of limited liability °

be known to both parties." This knowledge enables the

passenger to determine. in advance the amount of in- | ve)

22 “In gratuitous contracts, ‘the intention -to exercise an act of

liberality or to render a service,. constitutes a sufficient cause of

engagement”. Aubry and Rau, urs de Droit Civil Francais IV,

Obligations, §345 (6th ed. La. L. Inst, tr. 1965). is

0° The object was to exclude the application ‘of the -Convention

to casual, isolated flights when a free ride is afforded by an owner.

not engaged in the business (enterprise) of flying. * ,

31 “Jt is the will of the parties, and not the route actually taken

the plane, which ‘constitutes the determinative element for the

classification of the flight. This prescription possesses, for the parties

involved, the appreciable advantage of settling in advance the ap-

‘plication of the Warsaw Convention, thus becoming independent of

- fortuitous events. Coquoz, supra note 16, at 96. ; .

See also Grein ‘v. Imperial Airways, Ltd. Ct. App. England

1936, t Avi. 622, 635; Ca , supra note 20, at 262; J rt, te

Elementaire de Droit de Aérien 319 (Paris 1952); uis, supra

_ note 20, at 21; Sullivan, supra note 20. at 6.

76a

Appendix €

surance he needs ;** permits the earrier’s insurer to gauge

_ the carrier’s long-term risk, and act accordingly ;* and, -

finally, advises the ¢arrier as to what law it need conform

its transportation. documents. This rationale—that. the

flight: arrangements must be based upon an agreement be-

cause only in that way can the necessary knowledge or

foreseeability be achieved—implies that as long as: there

exists an agreement between the carrier and the passenger

as to. transportation and as to places of departure and —

arrival, any agreement between the owner-carrier and a

third person, the charterer,’ is irrelevant to Warsaw pur-

poses.

The common denominator of all Warsaw contracts of

carriage is the consent of the carrier to. transport ‘the

passenger (or goods) and the consent of the passenger

(or shipper) that the transport take place. “The contract

of carriage represents the sale and purchase of trans-

portation of persons and goods, i. e. an obligation to carry

passengers or goods from one place to another.”™ |For

_ this reason a stowaway injured in a plane accident may .

_ not recover against the“carrier under the Warsaw Con-

vention.*> This fundamental role of consent as a prereq-

uisite to the conclusion of a contract of transportation is

emphasized. in the Convention by Article 33: “Nothing con-

tained in this convention shall prevent the carrier. . .

from refusing to enter in any contract of transportation.”

82. See Lisi v. Alitalia-Linee Aeree Italiana S.p.A., 2 Cir. 1966, 370

F. 2d 508; Warren v. Flying Tiger Line, 9 Cir.’ BT965, 352 F. 2d 494,

497; Mertens v. Flying Tiger Line, 2 Cir. 1965, 341 F. 2d 851, 856-57.

Cf. ’ Gardner, Some Legal Advice: So. you’re going to fly to ‘London,

‘ss A.B.A.J. 412 (1957).

3 Report rt of the Secretary of State, Cordell Hull, to the President

of the nited States, Franklin Delano Roosevelt, 1934 U.S. Av. Rep.

240, 242; Ide, The History and Accomplishments of the. ae

Technical Committee of Aerial Legal Xperts (C.1.T.E.J.A.), 3 J. Air

L. & Com. 27, 29-30 (1932).

’ Crénfors, Air Charter and the Warsaw Cunivention 60 (The

Hague 1956). See also Riese, supra note 22, at 246-47.

35 _ Riese, supra note 22, at 233; see note 27.

si | as. Appendi« Cc

To sum up, for a flight to come within the scope of the

Warsaw Convention, the carrier must have agreed to carry

the: passenger, and both the carrier and’ the passenger

must. have ‘consented to. the particular route. If the

carrier is an. fair transportation enterprise” the pas-

senger need not have paid or have promised td pay, pro-

vided that the carrier has consented to transport the pas-:

senger under those conditions. Finally, the passengers

and tlie airline need not have been in a position . where

they eould bargain over the terms of carriage.

_ The existence of the airline-passenger relationship: is

not destroyed by the fact that a third party negotiated

the agreement and signed the charter. A fortiori, the |

airline-passenger contract exists when the negotiator is

‘only.a nominal party, acting on behalf of the’ passengers:**

Nor is the airline-passenger relationship destroyed by the

fact that in certain circumstances and in accordance with

the law of certain countries, the charterer may be treated

as the carrier in determining its liability. -

B. The fatal flight developed out of three sets of_con-

tractual relationships: first, the relationship between Air

France and the Atlanta Art Association, created by their

36 The plaintiffs contended below that there must be-a direct con-

”

78a

Appendia C

“International Charter Flight Agreement”; second, the

more informal set of relationships between the Art As-

‘sociation and the individual passengers; and third, the

_ relationships between the individual passengers and’ Air

- France, concluded by the airline’s delivery to each pas-

senger af -@ personal ticket for the flight...

The initial arrangements for the charter flight. were

.made in the “International Charter Flight Agreement”

dated February 2, 1962, and the supplementary “Schedule

. A” dated January 8. At the heart of these two docu-

ments was “an agreement for Air France to furnisl® a

. Boeing 707 jet with a 140 @@senger capacity in return —

for a payment by the Art Association of $36,000. The

flight was-scheduled to leave for Paris May 9, 1962. The

Art Association had the right to cancel the contract un-

‘conditionally up to 25 days before that date. If the As-

sociation cancelled after that date, it would have to pay

Air France a cancellation fee of $3,600, ten per ‘gent of

the charter fee. Air France had the right to cancel at

any time, subject only to the duty to return that portion

of the fee equal to the proportion of the miles not flown.

Under the terms of the agreement the Art Association

had no control over the physical conduct of the flight;

anything concerning the operation of the plane was the

responsibility of Air France.*’ Although the Art As-

37 i 8. Costs. All expenses for fuel, oil, crew salary and

— 5 and landing fees for the aircraft will be for. the ac-

count of AIR TRANCE All other expenses in connection with the

charter flight, ge transportation sold thereon, costs for visas,

customs inspecti:

on fees, customs duties and other taxes payable in -

connection with the passengerd, baggage - cargo transported, shall

be for the account sot the Charterer. o

“Article 4. O tion, . Interruption. or Cancellation of Flight.

(a) AIR FRANC ‘shall have exclusive my over the aircraft

chartered hereunder and reserves the rights, in its sole discretion,

to determine the route to be flown and airports to be used; 7

for operational reasons, the number of passengers and the w nt,

size, type, contents and value of baggage and cargo. (c)

captain of the aircraft shall ‘have complete Gawetien conesuniing

’

NS DDD te haat WN SLL tt lhc a hele re mia =

. 19a

Appendix C

sociation was to obtain the passengers for. the flight, its

_. Choice of passengers in no way bound Air France.* Thus

even if a person had paid the Art Association the price

the flight. That right came into being only by the act

of Air France in‘ issuing, in ‘the passenger’s name, an -

ordinary’ airline ticket. The ticket itself was not the.

contract but. its issuance evidenced the contractual - re-

lationship between the passenger and Air France.

The charter agreement contained the following pro-

vision: : : | :

“Article 8. Liability

(a) Carriage furnished herein is subject to the

rules relating to liability established by the Con-

‘vention for the Unification of Certain. Rules Re-

lating to International Carriage: by Air, signed at

Warsaw, Poland, October 12, 1929 (hereinafter

_. ealled ‘Warsaw Convention’), unless such carriage

- is not ‘International Carriage’ as defined by said

Warsaw Convention.”

‘Essentially the same provision was contained in the boiler

plate “conditions of contract” on the reverse side of each

( Footnote continued )

the load carried and its distribution and the manner of its stowing

and as to where landing should be made and the Charterer shall ac-

cept as final all such decisions of the captain, but neither the captain

nor AIR FRANCE shall incur any liability as a result of the exer-

cise of such discretion. (d) The operating personnel are the servants

or agents of AIR FRANCE and ll remain at all times under the

exclusive control of AIR FRANCE. They are authorized to take

ord ~s only from AIR FRANCE unless specific agreements have been

certain defined instructions from charterer.”

38 6“ Article 6. Carriage of Passengers, Baggage and Cargo. Chart-

erer shall not permit any passenger to be carried unless such pas-

senger has been issued a ticket by AIR FRANCE, nor. permit any

- ak be carried unless AIR FRANCE has issued a baggage

ec erefor.” " .

80a

Appendia C

“ticket”. In Article 6 of the agreement Air France agreed

that it would “be bound by the terms and conditions of

said Air France tickets”. The provision further states

that the tickets created'a direct cause of action in the

passengers against Air France. “Any action taken by

Charterer with respect to said tickets ... . shall be deemed

to be taken as agent for the passenger... .” Before the

tickets were issued, and despite the existence of the char-

ter agreement, Air France had no obligation to carry

any individual passenger.

.- The contractual relationship established between Air

France and the passengers and evidenced by the individual

issuance of these. tickets fits the description of the re- -

lationship required by the Warsaw Convention. First, -

Air France was in no way deprived of its freedom to con-

tract, referred to by Article 33 of the Convention. Second,

Air France, owner and operator, agreed to the carriage

of each individual passenger. Third, Air France agreed

accepting the route already agreed to by each passenger.

' . The only difference between this charter arrangement

and the arrangements for an ordinary commercial flight

is that in the present case payment for the transporta-

tion was indirectly routed through the Atlanta Art As-

sociation. However, since the Convention applies even to

gratuitous transportation, there is no reason why a con-

tract should not exist when the payment is indirect but

comes from the passengers.

IV.

_ The plaintiffs assert that any ambiguity in the Conven-

tion itself is dispelled by the history of the treaty which

allegedly -proves that the framers intended to exclude

charter flights. We find a good deal of disagreement and

SNE TS A eel a rte

8la

_ Appendix C

uncertainty whether certain charter arrangements come

within the scope. of the Convention. We do not, how-

ever, find any substantial evidence to the effect that all

charter flights—whatever their nature and whatever the

relationship between the passenger and the carrier—were,

as the plaintiffs contend, intentionally ranean from the

scope of the convention.

A. The pn below refused to consider the legislative

history of the Convention on the ground that the language

of the Convention was “unambiguous”. We feel, however,

that the determination in an American court of the mean-

ing of an international convention drawn by continental

jurists is hardly possible without considering the concep-

tion, parturition, and growth of the convention;

The American Law Institute Restatement of the. For-

eign Relations Law of the United States gives the following

blackletter rule for el an international agree-

“ment:

“§149, Basic Function of Interpretation.

The extent to which an international agreement

creates, confirms, modifies or terminates relation-

ships under international law is determined in case

of doubt .by the interpretation of the agreement.

The primary object of interpretation is to ascertain

the meaning in which the [high contracting] parties

have used the terms in which the agreement is ex-

pressed, having regard to the context in which they

occur and the circumstances in which the agreement

was made. This meaning is determined i in the light

of all relevant factors.”-

Section 150 of the Restatement lists the following relevant

factors, among pets mht ; be taken into account, “by way

of guidance in the iMerpretative process”; the ordinary

82a, il om

Appendix C

meaning of the words in the context in which the words — :

are used, the title and statement of purpose, the negotia- |

tion of the agreement, drafts and records of deliberations, |

negotiating history, a party’s unilateral statement of un- 3

derstanding, the subsequent practice of parties, change of a

circumstances relating to performance, compatibility with

international law and general law. Similarly, the Harvard

Research in International Treaties, 29 Am. J. Int. L.

Supp. 937, 938 (1935), states ::

“The historical background’ of the treaty, travaux

préparatories, the circumstances of the parties at

the time the treaty was entered into, the change in

. these circumstances sought to be effected, the sub-

sequent conduct of the parties in applying the pro-

visions of the treaty, and the conditions prevailing

at the time interpretation is being made, are to be

considered in connection with the. er purpose

which the treaty is intended to serve... . . All that 4

* can be said. is that all of them are or may be

significant in arriving at a sound interpretation in i

a particular case, and that none of-them should be a ne

overlooked by the person charged with interpreting 4

_ the treaty. Each of them may contribute in some ~ 4

measure to giving an accurate and complete ‘pic-

ture’ of the treaty in its setting, and it is only when

so viewed that its general purpose can be .fully

comprehended and intelligently effectuated. Only

‘then can one undertake to say what ‘the treaty

‘means’. 9

See, also Hyde, International Law Chiefly as Interpreted

and Applied by the United States 1481 (Rev. ed. 1945) ;

. Lauterpacht, The Development of International Law by

the International Court 124-27 (1958). . .

83a

. Appendix C

“In its long experience as an interpreter of treaties the

Supreme Court has maintained ‘a record singularly free

from the manifestation of a sense of obligation to ex-

clude or ignore the probative value of evidence at variance

with ‘what the form of a text would appear to entail.”

Hyde 1481. The Supreme Courtjiéself. has said: “Of

course treaties are construed more liberally than private

agreements, and to ascertain their meaning we may look

beyond the written words to the history of the treaty, the

negotiations, and the practical construction adopted by

the parties.” Choctaw Nation of Indians v. United States,

1943, 318 U. S. 423, 63 S.Ct. 684, 87 L.Ed. 889. See also

L.Ed. 1298; Cook v. United States, 1933, 288 U.S. 102, 53

S.Ct. 305, 77 L.Ed. 641; Nielsen v. Johnson, 1929, 279

U.S. 47, 49 S.Ct. 223, 73 L.Ed. 607. Speaking of the

“plain meaning” canon, as applied even to a statute, the

Court has said:

“When aid to” cuatreiie of the ‘neaning a. ;

words as used in the statute is available, there cer-

tainly can be no ‘rule of Jaw’ which forbids its

- use, however clear the words many appear on

‘superficial examination’.” United States v. Ameri-

can Trucking Ass’n, 1940, 310 U.S. 534, 60 S.Ct.

1059, 84 L.Ed. 1345.

A multilateral treaty is , rather like a “uniform law”

within the United States. The Court has an obligation

to keep interpretation as uniform as possible. To fulfill

that obligation and follow the consensus as to construction,

the Court should resort to re history and to rel-

evant extrinsic aids.

B. Changes in the draft conventions indicate that, al-

- though the Warsaw Convention was: the first of its kind

and did not purport to codify air law, the terms of the

‘

84a

Appendix C

Ciiniititiai should be applied broadly. Aiticls 10), of

the De Vos draft originally read as follows:

“This Convention shall apply to international

transportation of passengers, goods and baggage

performed by aircraft for hire or by an air trans-

portation enterprise with or without remuneration.”

It remained unchanged until after the Conference rejected.

a Brazilian proposal that “carrier” be defined. See Sec-

tion IV D of this opinion. The Conference then added

the word “tout” (all) and a second sentence. AS adopted

Article 1(1) reads:

“(1) This convention shall apply to all interna- ..

_ tional transportation of persons, baggage, or goods:

performed by aircraft for hire. It shall apply’

performed by an. air transportation enterprise.”

Although the final draft retricted “international trans-

portation” to transport between places in countries which .

were parties to the Convention, Citeja, commenting on

. Article 1(2), said:

“The definition ‘of international transportation ae

has been made broad, so.that a transportation whose -

place of departure and place of destination. are

situated in the same country, is still considered as

international, if a stopping place is provided in |

another country, even a non-contracting one.” (SJ- |

X6, p. 411) —;j } ;

The British Silesian proposed that Article 1 of the

draft be amended by adding a provision that “trans-

portation between territories subject to the sovereignty

or the authority of the same High Contracting Party

shall not be deemed to be international for the purposes

of this Convention”. Such an amendment would mean

’ P j

: CMe vee te Pet 9 » ee oe er ae eee .

‘

85a

‘Appendix C )

that the Convention’ would not any to flights within

the British Empire. Sahanine, The Russian delegate,

opposed the amendment.

“By coming to this Conference, the Soviet Delega-

tien had as its mission to defend, as far as possible,

_ the application of the terms’ of the Convention to all

cases, without exception, of international commer-

cial air Crequportation.=-— >

The ‘ia: defeated the British ' proposal, con-

‘sistent with the general objective that the terms of the

Treaty should apply broadly.

C. The ‘plaintiffs point to the official title of the Con- .

vention—the “Convention for the Unification of Certain

Rules Relating to International Transportation by Air”.

They contend that in general it reflects limited ambitions

on the part of the drafters and the High Contracting

Parties; that in particular the omission of any referee

to “dhartecs showed an intention that the Convention

should not apply to any charter or charter flight.

There is support. for this view in post-Warsaw de-

cision of Citeja in the thirties to defer a convention on air

charters as premature: (1) international charter flights

were then still uncommon and (2) the legal problems

created by the charters were so complex that a convention

could not be drafted without first completing an ex-

-haustive study of the subject. However, this view as-

sumes that a convention would have to cover all types of

air charters and the varying legal effects of the rela-

tionships of owner to charterer and of charterer to

passenger. It ignores the position of a number of Citeja

members and others who assumed the applicability of

the Warsaw Convention to the contract of carriage re-

sulting from voyage charter. _ It overlooks the common

fe .

86a

Appendix C

practices of: didtints, as evidenced in charter forms and

transportation documents. It underestimates both the -

vision of the men who drafted the convention and the

tenacity with which they held to their objective of creat-

ing uniformity in the area of the carrier ’s responsibility

to its passengers and shippers. :

The: general attitude at the Conference which pro-

of change. On the ‘contrary, the participants accepted

head-on the challenge to create a body of legislation

that could keep pace with the rapid. development of

air transportation itself. De Vos, Reporter for the draft

presented to the Convention, expressed this sentiment

in his introductory speech:

“These are the essential traits of the draft of

Convention submitted to you. As I said before,

time has come to materialize. The air carriers ex-

pect of | _us that we give them and the underwriters

the juridi -base of their exploitation. Their

- duced the Convention was not one of caution and fear. |

transports are daily taking on unexpected propor-—

tions; in my country alone, at one single airport,

in the summer season, there are up to 36 daily

- flights of regular airlines. The aircraft goes faster

and faster every day so that the Fokkers, the

Farmans shall soon appear to be tools of olden

days. We still have in our ears the deafening

sound of the supermarine which just won the

Schneider cup, with a speed of about 600 kil-

ometer (375 miles) an hour, and we have before

our eyes the colossal spread of the Do-X which,

on Lake Constance, has just demonstrated the

possibility that tomorrow, in all countries, intra-

structures shall be established for day and night

flights. What engineers are building .for motors,

we, jurists, must do for. the code.”

30 II Conférence Internationale 17.

SE ee ee

S7a

Appendiz C

Later in ‘the proceedings the Polish delegation sub-

mitted a proposal that the drafters include a provision

establishing a schedule, for periodic revision of the Con-

vention. This proposal was rejected. Amendee Giannini,

head of the Italian delegation and president of the com-. -

mission which prepared the draft presented to the Warsaw

Conference, spoke in his introductory remarks against

this proposed provision, complaining that in: effect it

would be a declaration that the Convention was “merely |

a first attempt at codification, a first effort to eodify air

law .. .” and that if this provision were inserted in the

Convention the drafters would be establishing “the prin-

ciple that this first effort we are making aed is not

definitive.’

Werlich, one of the two handen observers at the

‘Warsaw Conferencé, ‘said: “My understanding of the

purpose of. this Conference is to draw up a conven-

‘tion which, although it may not cover all the more

important relations between. passengers or shippers and

the transporter in commercial air traffic will at least

‘give the fundamental relations on which such commercial

air traffic can be carried on.”“* In Garcia v. Pan American

Airways, Inc., 1945, 55 N. Y. 8S. 2d 317, 320, 269 App.

Div. 287, aff'd, 295 N. Y. 852, 67 N. E. 2d 257, cert. den.

329 U. S. 741, 67 S. Ct. 79, the Court read Article 1 as

stating : “The framers of the Warsaw. Convention sought

to effectuate the provisions of the compact, inclusive of —

the provisions specifically referred to, within as wide a

scope as practicable in the light of the fact that its high

contracting parties did not include all the powers -of the

world.” | .

40 Id. at 23. See also Flandin, France, id. at 28.

a1 Werlich, pepert to the State Department, Archives 579.6L-

2/34-35, pp. 1-5. i

88a

Appendix C

‘On the other hand, the Warsaw Convention was cer-

tainly not intended to cover all the problems arising in in-

ternational transportation. As Secretary of State Cordell

Hull wrote: to President Franklin Roosevelt March 31,

1934:

“This Convention constitutes the first of a suaies

of conventions on various subjects of private aerial

law which have resulted or will result from the de-

liberations of the International Technical Commit-

tee of Aerial Legal Experts (Citeja), an interna-

tional organization engaged in. the preparation

of a code of private air law through the adoption

of draft conventions on which final action is taken |

at general international conferences called for the

purpose of considering the drafts.”

Ide, the other official American observers cites.as.an ex-

ample of one subject not covered at Warsaw, the liability

of air carriers for. damage caused to third parties on the

ground. Damage to third parties was originally to be.

discussed at ‘the Warsaw Conference but because of a

failure to reach an agreement on certain points.the sub-

ject was set, aside. Ide, The History: and Accomplish-

_ments of the International Technical Committee of Aerial

Legal Experts [Citeja], 3 J. Air L. & Com. 27, 38-39

- (1932), The subject was brought up, however, at the

next International Conference, and damage to third par-

ties became the subject matter of the Rome Convention

of 1933. Other examples of subjects Citeja studies in

1929 which were not discussed at Warsaw, were the

establishment of an aeronautical registration system for

registering the ownership of all airplanes; mortgages and

aerial liens; the,legal status of the commanding officer

of an aircraft; and the problem of rescue at sea. Ide,

42 1934 U.S. Av. Rep. 240, 241

-owner. {If it is wished to bring c

89a

_ Appendiz C

supra, at 40. Clearly, therefore, certain subjects were

purposely not covered by the Convention, as is evident

from the limitation express in the Convention’s official

title. The Convention was concerned primarily with the

uniform rules for dealing with transportation documents

and the liability of the air carrier to its passengers for. -

injury or loss. i. ee ht :

D. Only once during the Warsaw Conference were

charters mentioned. That was in a proposal ‘by the

Brazilian delegation to define the word “carrier” in the

following terms:

“The carrier shall be considered the person who

owns, charters or manages an aircraft, uses it’ in-

dividually or jointly in the transportation of per-~

sons and goods, within the meaning .of this conven-

tion, and in conformity with national regulation.’

- 43 The Brazilian delegation’s statement ih support -of_ this pro-_

posal reads as follows: “Sinc®- the status of the -air t®ansporta-

tion operator differs, due to the inherently international racter

of aircraft, from rules relating to the captain in merchant rine,

and the boatman in river navigation, or to the carrier in over-

land communication, it would be -useful for this: designation to. as-

similate the multiple concept as to his responsibility. {This is all

the more necessary, as the word carrier, so adequate.to the end of

its destination, nonetheless does not correspond exactly to most desig-

nations “used in the laws of different countries. It is used neither

by the French texts of most international conventions, nor in the

draft. concerning liability for damages caused to third parties, pre-

sented in May i Mr. Ambrosini, who merely refers to the owner

and operator of the aircraft. qf it is wished that the carrier be

the air transportation entrepreneur or. its nae ig in the meaning

of economic control of ‘the craft and established by German, Swiss,

Hungarian, Dutch jurisprudence, etc., or that he should be the one

for whose account the aircraft is exploited, according to Danish law;

and if it is wished to conform to the convention the concept of solid-

arity provided by the Polish Law, art. 71, between the owner and

the carrier, or that of Brazilian law, between the pilot and the ship: :

loser to the erab formula the

E concept of hire, in air rtation, racterized by the

od of contract, which concept in the laws of’ many states

of North America .. . gM oy could be achieved by qualifying

the carrjer on an oon with ‘the .transport.” II Conférence In-

ternationale 97; SJX4, p. 2; .

JX6, p. 235.

- 90a

Appendix C

This proposal would have brought all air charters within

the scope of- the Convention and made the charterer

jointly liable with the owner, Giannini expressed the

‘sentiment of the Conference: the matter was beyond the

realm of the Convention. He stated: |

As far as this Brazilian proposal is concerned,

‘the Commission felt that this problem was outside

the realm of the convention. Since, in this Article,

we have made statements and definitions for prac-

tical reasons, that is to say that the codification of .

private air law is made progressively, we have to

anticipate a bit, we have examined certain problems

which touch upon other conventions. But since in.

_ this‘case there was no necessity to define the carrier, )

-we thanked our colleague from Brazil, who fur-

-nished a great effort, and we have referred his

The -plaintiffs contend that the rejection of this pro-

posal. serves as a rejection of any connection between

the’ Convention and charter flights. We do not agree

with this interpretation. What the Brazilian proposal

recognizes is that in some circumstances a problem

will exist as to who is the carrier for Warsaw purposes.

The explanatory note accompanying the proposal points

out that according to the law of several countries certain

- charter arrangements would create & joint liability be-

tweert the airlines and the charterer or would even thrust

the whole liability upon the shoulders of the charterer

itself. In°presenting the proposal the Brazilian delega-

tion hoped to clarify once and for all who would be

liable i in such situations. ‘

_« Toid..

prospal to the C.LT.E.J.A.-for its consideration. -

Piha hie Srbindanane bela Se ocenenines ae

9la

Appendix C

The Conference did not give its reason for rejecting

the proposal. Resolutions included in the Final Pro-

tocol noted that the Warsaw Convention regulated only

' “certain”: questions relative to transportation, took cog-

nizance of the Brazilian proposal “with respect to the~.

definition of the carrier”, adhered to the view that the

question should not be settled in the Warsaw Convention,

and referred the matter to Citeja for study.” The dele-

gates may have decided (so De Vos thought) that it was

better to leave the definition of “carrier” for the courts

to work out in accordance with the general, law of the

form. = ~ 4

It seems clear enough from the decision at Warsaw

' and, later, in Citeja meetings that the type of flight

here the subject of this litigation would have raised no

doubts in the minds of the Brazilian delegates. , Here

the Art Association could not qualify as the carrier. Air

France was in total control of the flight. Air France

was the only party in a position to comply with the

formal and documentary requirements of the Conven-

tion. And Air France had assumed all the obligations

of a contract of carrier that it would have assumed if the

flight had been of an ordinary commercial nature. The At-

lanta Art Association had no contractually based respon-

sibility towards the passengers for performance of the

obligation to transport or for the safe conduct of the

flight. By the terms of the charter, the Association was

. the agent of the passengers. Reduction of the charterer’s

role vis-a-vis the passenger, leading to the conclusion. that

in this country, when the charterer’ is only an agent, that

the contract of carriage must be between the owner-

operator and the passengers. The Atlanta Art Associa-

tion could not have been the garrier. See footnotes

36 and 57. ae 7

Ibid.

92a

Appendic C

E., Mention of charter flights is made in the ground-

work leading up to the 1929 Warsaw Conference, but here,

too, the reference is to special problems that may arise

in ambiguous charter situations, such as “who is the car-

rier” and what is the charterer’s liability. At the First

International Conference on Private Air Law held in

Paris in 1925 a preliminary draft was presented to the:

delegates specifying nine topics to. be considered. As

noted earlier, one of these topics,was “location d’aéronef”

or “hiring of airplanes”. Citeja was created to make

a detailed stydy of the draft and other problems that

‘might arise. Citeja in turn established four. commissions

(sub-committees) and divided the workload among them.

Among the five topics assigned to the Second Commis- .

sion was “location des aéronefs”.“” May 1929, three

years later and only five months before the Warsaw Con-

ference convened, the question of “location des ‘aéronefs”

was raised for a brief discussion, ending in a decision,

‘urged by De Vos and — to put it aside for a later -

date. “

The plaintiffs contend that by tabling ae question

the members of the Second Commission. and, later Citeja

_ itself, expressed the intention to kept charter flights out-

side the regime of the Convention. Minutes of the Sec-

ond Commission meetings prior to the 1929 Warsaw Con-

ference are not informative; minutes of the later meet-

ings in which the delegates adiressed themselves in more

‘detail to the issue of. “location des aéronefs” are more

useful. 7 sce

47 Minutes and Reports of the first session of Citeja, Archives

579.6L1A/22 1/2 at p. 26.

48 Archives 579.6L1A/84.

93a

Appendix C

These post-Warsaw meetings show a concern, similar

to that eéxpressed by the Brazilian delegation, as to

whether. charters, . not charter flights, are covered by the

Convention. As Drion pointed out in his book, Limita- .

tions of Liability in International Air Law 133 (The .

Hague 1954) : : ; ‘ oie

| “The Warsaw Convention does not contain any

definition of who is to be considered a ‘carrier’, An

' attempt by the Brazilian Delegate at the Warsaw

Conference .to insert a definition, mainly to take

care of the problems arising under charter agree-

ments, failed to receive support, so that one must

now distil the meaning of the word from the word-

ing and system of the Convention itself. ... The.

main choite is between the following possibilities:

(a) carrier is he who has concluded in his own

name a contract for the carriage of passengers or

goods [or]

(b) carrier is he who actually performs the car-

riage governed by the Convention.”

In these meetings and subsequently, De Vos, the primary .

author of the Convention, consistently took the position

‘that in air charter relationships there are two distinct

contracts: “the contract which exists between the pas-

sengers and the carrier [which is regulated by the Con-

vention] and another contract, which is the contract be-

tween the owner of the aircraft and the operator [or the

charterer]. What is the situation in the second case? It

should be examined in a separate convention.”

49 ~=Archives 579.6L1A/382.

' Sggete C Pe ee ea

In 1932 Major K: M. Beaumont, representative of the

International Air Traffic’ Association (IATA)® at the

Warsaw Conference, attempted to review with certain

delegates: to the Conference the question whether the Con-

vention was intended to cover air charters. He reported

to IATA that the replies he received “seemed to indicate

that the Government draftsmen responsible for the War-

saw. Convention did not contemplate charter contracts

coming within the provisions of the Convention at all,

though they were unable to quote from the Convention

_ itself any provisions which would have the effect of tak-

ing such hirings out of the obligations imposed on. car- -

Tiers by the convention. .. .” The IATA then directed

a questionnaire to Citeja regarding the effects of the

Convention on several types of charter and suggesting

that Citeja consider whether it would be desirable to

prepare an international convention on contracts of

‘charter and lease of aircraft. The IATA asked whether,

assuming that the Convention applied to some charter

flights, the owner or the charterer was. responsible for.

the application of the provisions of the Convention, in-

cluding particularly:those concerning transportation docu-

ments. The Secretary General of. Citeja referred the

questionnaire to De Vos, as Reporter for the Second Com-

mission. Because of De Vos’s having been the Reporter

of the Convention, he questioned the propriety of his an-

swering authoritatively in the name of Citeja questions

from a private association. And he questioned the value

‘in -)

50 =6TATA is an international association of airlines. As the plain-

- tiffs point out, the association had, of course, an axe to grind. But

see letter from Secretary of State ‘Cordell Hull to President Franklin

Roosevelt, dated March 31,-1934: “This Convention has been studied

by the -Department of Commerce, which advises adherence thereto

by the Government of the United States. That Department has ex-

Pp the view that the provisions of the Convention are fair =

afford protection to the air- rt operator as well as to p

and shippers, and that if the United States fails to become a — al

_ the Convention, American air-transport lines ome on an interna- .

tional basis will be at a disadvantage while o in countries

that are parties to the Convention.” 1934 U. _ p. 240, 244.

95a

Appendix C : ;

of his individual opinion or even that of Citeja’s in the

‘interpretation of an international Convention. Neverthe-

less he added, “Having said this, I can give you my opin-

ion on the matter”. His letter succinctly states the case

for construing the Warsaw Convention as applicable to the

carrier (airline)-passenger relationship in a.voyage char-

ter flight, regardless of the inapplicability of the Con-

vention to the relationships and ‘liabilities of the owners,

charterers, lessees, and others. In pertinent part, De Vos

wrote: . ;

“The ' problems raised by the LA.T.A.’s_ note |

are interesting, merit an examination and ‘might

form the subject of a special convention.

But they do not challenge the provisions of the

' Warsaw Convention itself. The latter governs

the relations between the party who.assumes the

. jiability for the -transportation [the carrier] ‘and

the one who is transported [the passenger] or has

something transported [the shipper]. |

Whether the party who accepts the transportation

is the owner or simply the. charterer—for a period

of time or by the trip—the situation of the pas-

senger (tramsporté) or the shipper will not be

changed: their rights and their obligations con-

tinue to be determined by the articles of the War-

_ saw. Convention. )

The acts, the engagements of the owners and

_. the charterer among themselves, are acts or en-

gagements which do. not bind the traveler or the

shipper res inter alios acta.

Conclusion : Side by side with the rules estab- —

_ lished by the Warsaw Convention on the carrier’s

La,

96a

Appia C

liability, ine ‘exintd a ree connéeted with the

contract..of transportation concerning the rela- .

tions between owners, charters, lessees, et cetera; ——__..

which can and should, to my mind, constitute the |

subject of a-.thorough examination on the part of

the C.I.T.E.J.A.” (Emphasis added.)

Major Beaumont and, of course, the airlines were

especially interested in determining responsibility for

the issuance of tickets and other transportation docu- |

ments, wholly, aside from the question of the respective

liabilities of owner and charterer. In a report to the -

IATA in August 1933 Beaumont wrote:

“The main difficulty is not to decide who has to

be considered the ‘carrier’ for purposes of the

Warsaw Convention in connection with charters.

Usually the party who normally operates the air-

. eraft- ‘will be the ‘carrier’. The difficulty in such

eases is a practical one—namely that of complying

with the somewhat complicated regulations con-

cerning Tickets, Baggage Checks and Consign-

ment Notes when the aircraft is operated away

from aerodromes where the operator has repre-

sentatives who can attend to these formalities.”

But on the question before this Court he saw eye to

eye with De Vos:

“The ‘international carriage’ referred to in the

Convention is. carriage. of passengers, baggage

ee Defendant's Exhibit T-1, p. 2, Citeja Doc. 182; Archives 579.6L1A _

339, 344. De Vos’ answer to the 1932 IATA questionnaire was duly

forwarded by the U.S. Embassy in Paris to the Secretary of State

in Washington on December 8, 1932 (State Department file 579.6 L

1A/339; see Defendant’s Exhibit ‘T-2’, pp. 1, 11, 12-17). It was

translated by the State Department and an English translation of

‘ the De Vos answer was forwarded to the Secretary of Commerce

on January 9, 1933 (State Department file 579.6 L 14/344; Defend- —

ant’s Exhibit “T-2’, pp. 20, laa

97a ise

Appendiz C_ -

and goods for reward, and gratuitous carriage by

an air transport undertaking. It appears to. be

clear that some contracts of charter and hiring

must come within the meaning of this description.”

(1932 Report to IATA, Defendant’s Exhibit U-1,

4.3 ;

Thirty years later, Major Beaumont adhered - to this

. Opinion.” See also Shaweross & Beaumont, Air Law

§§ 351(2), 359, (1951),

February 14, 1933, the IATA questionnaire and the

De Vos letter came up for consideration at a meeting of

Citeja’s Second Commission. De Vos reaffirmed his views

that the IATA seemed to confuse two different con-

tracts, the one between the carrier and the passenger

and the other between the owner and the operator’ (char-

terer); the second should be examined, if at all, in a

Separate convention.” Proféssor Giannini ‘of Italy argued

that the “question consisted in seeing whether charter-

parties should be introduced in air law . - - and what

should be the relationship between the Owner and the

operator”. The. Commission voted to refer the ques-

tion to Citeja with the request that it be put on the

Commission’s agenda. )

the country of the first High Contracting Party; where ‘C’, the air

carrier, owns, operates and controls the aircraft and, prior to de-

parture, delivers tickets (meeting the requirements of Article -3 of

the Convention) to ‘B’ for that ge, the Warsaw Convention

would be applicable (unless the fii ht was gany excluded by

Article 2 or Article 34 of the Convention, and ‘B’, the assenger or

passengers, would be entitled to the presumption of liability con-

tained in the Warsaw Convention as against ‘C’, and ‘C’, the ‘air

carrier, would ‘be entitled to the limitation of liability also ‘contained

..in the Convention as against ‘B’. (Defendant’s Exhibit “Q”.)

58 Archives 579.6 L 1A/382; Citeja Doc. 197.

98a

meiesenenet C

October 2, 1933, the Second Commission met and voted

‘ charter-hire question. De Vos declined. to ‘serve as Re-

porter for the project; “because of the preconceived ideas

which he had expressed”. The Commission selected first

Hess and, later, Professor Pietro Cogliolo, to serve as -

Reporter. De Vos again expressed the view: “There

are no grounds for an international convention. The -

regime of liability was not going to be: altered according

to whether it was the owner, the charterer or the op-

erator who was in question: the regime was always the

same. ... Should Citeja be informed that this ques-

tion did not seem to be material for an International

Convention although we would not refuse to study it?’

- (Emphasis added.) October 4, 1933, Citeja itself met.

and approved the decision of the Second Commission to

retain the charter-hire question for study.

The minutes of the Second Commission meeting of

February 26, 1936, show the breadth of the subject matter

included under the heading “location des aéronefs”. Co- |

gliolo, the reporter for the topic, described to the meet-

ing the questions he intended to cover, most of which

dealt with the allocations of liability between the char-

terer and the airlines, and none of which justify a fail-

ure to apply the Warsaw Convention to the present case.

The questions Cogliolo presented were as follows: (1)

What are the obligations of the owner to the charterer;

(2) Can the charterer assign the contract of charter;

(3) Should there be special rules governing the leasing

of -aircraft; (4) Against whom do third parties have

rights;.(5) What is the effect of force majeure; (6) Who

bears what expenses to keep the plane airworthy; (7) If

insurance is obligatory, who should’ take it out; and (8)

Whether charter contracts should be required to be en-

99a

Appendix C

tered in the aeronautical register.” The’ plaintiffs em-

phasize certain selected statements of Cogliolo:

“Therefore, the first problem to be settled is

this: is there a right of action against the owner

or not? The nature of the relationship which exists

must be defined. v ;

Once one has established the nature of this re-

lationship, a .second question arises—that of the

limitation of liability. stipulated by the Warsaw

Convention. Since the Warsaw ‘Convention does

not mention this case, does the limitation of liabil-

ity apply when an aircraft is leased in accordance

with the first hypothesis or the second hypothesis?

Do third parties have rights. against the owner

or only against the charterer? And again, in this

case, is it necessary to state what rights the third

parties have depending upon. which one of the

_ parties’ hypotheses which we have -contemplated |

is adopted.” . : so,

The defendant observes that Cogliolo, like any good Re-

porter, explained that “in my report of February 1936

was a list of a considerable number of possible questions, ;

which I presented solely for the purpose of bringing them

to the attention of experts”. It seems to the Court that,

for purposes of this litigation, the Reporter’s most import-

ant statement was: ° ae

If the owner of the aircraft and the operator

of the air carriage have hired out a given spac

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