Petition for Writ of Certiorari — MGM Grand Air, Inc. v. Miceli
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IN THE ;
Supreme Court of the United States
OCTOBER TERM, 1997
MGM GRAND AIR, INC.,
Petitioner,
VS.
MARK MICELI, ANDREA MICELI,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI
TO THE CALIFORNIA COURT OF APPEAL
SECOND APPELLATE DISTRICT, DIVISION FOUR
PETITION FOR WRIT OF CERTIORARI
PETER P. BROTZEN
Counsel of Record
GREGORY L. ANDERSON
DWYER, DALY, BROTZEN & BRUNO, LLP
550 South Hope Street, Suite 1900
Los Angeles, California 90071
(213) 627-9300
Attorneys for Petitioner
MGM GRAND AIR, INC.
Lawyers Brief Service + Appellate Brief Printers * (213) 613-1013 + (714) 720-1510
QUESTIONS PRESENTED FOR REVIEW
1. Whether under the Warsaw Convention a
document which contains all of the
information specified for a “passenger
ticket” is sufficient or whether the Warsaw
Convention additionally requires that a
“passenger ticket” be in a particular format,
consisting of coupons to be detached and
returned to the carrier before boarding.
a Whether after Chan v. Korean Air Lines,
Ltd. (1989) 490 U.S. 122, 109 S.Ct. 1676,
104 L.Ed.2d 113 the failure of the carrier
to provide “adequate notice” to the
passenger of the applicability of the
Warsaw Convention to the flight deprives
the carrier of the limitation on liability
found in the Warsaw Convention.
3. Whether the California Court of Appeal
erred in relying on Warren v. Flying Tiger
Line, Inc. (2d Cir. 1965) 352 F.2d 494,
Mertens v. Flying Tiger Line, Inc. (2d Cir.
1965) 341 F.2d 851 and Block v.
Compagnie National Air France (Sth Cir.
1967) 386 F.2d 323, cases whose reasoning
was rejected by the United States Supreme
Court in Chan, supra and thereby
resurrected the erroneous doctrine that the
Warsaw Convention requires that the
passenger receive “adequate notice” of the
applicability of the treaty.
ra
LIST OF PARTIES
Petitioner: _ MGM GRAND AIR, INC., a corporation
wholly owned by GRAND HOLDINGS,
INC. — Defendant - Appellee Miceli v.
MGM Grand Air, Inc. Court of Appeal of
the State of California, Second Appellate
District Case No. B 101950; Miceli v.
MGM Grand Air, Inc. Los Angeles County
Superior Court Case No. BC 110388.
Respondent : MARK MICELI and ANDREA MICELI —
Plaintiffs - Appellants, Miceli v. MGM
Grand Air, Inc. Court of Appeal of the
State of California, Second Appellate
District Case No. B 101950; Miceli v.
MGM Grand Air, Inc. Los Angeles County
Superior Court Case No. BC 110388.
CORPORATE AFFILIATIONS
MGM GRAND AIR, INC. is a corporation that is
wholly owned by MGM GRAND, INC.
. a
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW ....... i
Ec Lbs ke Ses a eee sees il
CORPORATE AFFILIATIONS ............... ii
EE no veh es ee hse eee as eeeen 1
' EN ee ee 1
REE OPEAIEEE BOIVEINS 6. eee 2
STATEMENT OF THECASE ............... 3
REASONS FOR GRANTING THE WRIT ........ 5
I. THE OPINION IMPROPERLY IMPLIES
A FORMAT PROVISION IN AN
INTERNATIONAL TREATY ........... 7
Il. | THE COURT OF APPEAL DECISION
RESURRECTS A DOCTRINE
DISAVOWED BY THE U.S. SUPREME
ee rine sue vv ve ne 15
| ee 19
-iii-
LIST OF APPENDICES
APPENDIX A
Opinion and Order granting summary
adjudication dated September 21, 1995..... Al
APPENDIX B
Opinion and Order granting summary
judgment dated February 21,1996 ....... Bl
APPENDIX C
Opinion of California Court of Appeal,
Miceli v. MGM Grand Air (1996) 51
Cal.App.4th 702, 59 Cal.Rptr.2d 311 ..... Cl
APPENDIX D
Order denying rehearing by California
Court of Appeal dated January 8, 1997..... D1
APPENDIX E
Order denying Petition for Review by the
California Supreme Court dated March 19,
Eo 4k eae ee ee ee te El
APPENDIX F
Remittitur Notice of California Court of
Appeal dated April 2, 1997 ............ Fl
APPENDIX G
Judgment in favor of plaintiffs dated March
| eee re rere tee a eee Gl
-jV-
APPENDIX H
The Warsaw Convention .............. Hl
APPENDIX I
Charter Contract between MGM GRAND
AIR and Music Guide ................. Il
TABLE OF AUTHORITIES
Cases Page
Block v. Compagnie Nationale Air France
386 F.2d 323 (Sth Cir. 1967), cert
denied 392 U.S. 905, 88 S.Ct. 2053
ae EOD 6 hee ees 7, 12, 35, 17
Chan v. Korean Air Lines, Ltd.
490 U.S. 122, 109 S.Ct. 1676,
104 L.Ed.2d 113 (1989) .. 6, 10, 11, 14, 16, 17
In re: Air Disaster at Lockerbie, Scotland
S26 F208 1267 GO Ce. TOPE). wc ce ese 8
Mertens v. Flying Tiger Line
341 F.2d 851 (2d Cir. 1965) cert
denied 382 U.S. 816, 86 S.Ct. 38,
ED Rtn ee CRUD 04 0 0's eww ad be eas 17
Miceli v. MGM Grand Air
51 Cal.App.4th 702; 59 Cal. Rptr
y eet. Sree ain ee ee 1.5
Warren v. Flying Tiger Line
352 F.2d 494 (9th Cir. 1965)... 2... eee, 17
-vi-
Treaties Page
The Warsaw Convention
RTS SIU aLA saat CoS i ae 7
Se Ce ee Ie is 2,3,8,9
I vf) et rN Du en, OD are oe 8
-Vii-
PETITION FOR WRIT OF CERTIORARI
MGM GRAND AIR, INC. (hereinafter “MGM”),
Petitioner herein, respectfully petitions the United States
Supreme Court to issue a writ of certiorari to review the
decision of the California Court of Appeal, Second
Appellate District, Division Four filed December 12,
1996. Review of this decision was denied by the
California Supreme Court by its order of March 19, 1997.
OPINIONS BELOW
This petition seeks review of the decision rendered
herein by the California Court of Appeal, Second
Appellate District, Division Four published in the Official
Appellate Reports of the State of California as Miceli v.
MGM Grand Air, Inc., 51 Cal.App.4th 702; 59
Cal.Rptr.2d 311 (1996). (Apx. C) That decision was
subsequently the subject of a Petition for Review in the
California Supreme. On March 19, 1997, the California
Supreme Court denied the petition for review. (Apx. E)
JURISDICTION
The decision of the California Court of Appeal,
issued December 12, 1996, reversed summary judgment
in favor of MGM entered by the Superior Court of the
State of California for the County of Los Angeles on
March 5, 1996. (Apx. A,B,G) The Order of the California
Supreme Court denying MGM’s Petition for Review was
entered March 19, 1997 and the Notice of Remittitur was
De
served by the Court of Appeal on April 2, 1997. (Apx. F)
The jurisdiction of this Court is invoked under 28 U.S.C.
§ 1257(a) in that it involves a matter of interpretation of a
treaty entered into by the United States.
STATUTORY PROVISIONS
This case involves interpretation of the Convention
for the Unification of Certain Rules Relating to
International Transportation by Air, commonly referred to
a “The Warsaw Convention.” That treaty is set forth in
full in the appendix hereto (Apx. H) The specific
provision at the heart of this controversy is Article 3.
(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;
(b) The place of departure and of destination;
(c) The agreed stopping places, provided that the
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
character;
(d) The name and address of the carrier or
Carriers;
(e) A statement that the transportation is subject to
the rules relating to liability established by this
convention.
(2) The absence, irregularity, or loss of the
passenger ticket shall not affect the existence or the
Se
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 himself of
those provisions of this convention which exclude
or limit his liability.
STATEMENT OF THE CASE
This is an action for personal injuries.
Plaintiff-Respondent, MARK MICELI (hereinafter
“MICELI”) has worked as a live stage performance video
coordinator. His services were engaged to act as video
director for Madonna's 1993 world tour denominated the
"Girlie Show" tour. Mr. MICELI’S services in this
respect were obtained through a contract between himself
and a company called Music Tours, Inc.
Air transportation for the participants in the "Girlie
Show" was arranged by a company called Music Guide,
Inc. John Severson, Vice President of MGM GRAND
AIR, INC. entered into a written charter contract on
behalf of MGM GRAND AIR, INC. with Music Guide,
Inc. for the necessary air transportation. That charter
contract contained the date it was executed, the itinerary,
including the initial boarding place in Montreal, the final
destination in Los Angeles and the various cities and
countries to be visited by the “Girlie Show” world tour. It
also contained the name and address of MGM as the
Carrier and it was expressly agreed between MGM and
Music Guide, Inc. that the carriage was subject to the
terms of the Warsaw Convention. (Apx. I-18)
-4.
Pursuant to his agreement with Music Tour, Inc.,
MICELI acted as video director for the "Girlie Show."
MICELI boarded the MGM GRAND AIR aircraft along
with the rest of the tour participants in Montreal, Canada
and was flown from there to San Juan, Puerto Rico.
Presumably a concert was held in San Juan and MICELI,
pursuant to his agreement with Music Tour to act as video
director for the "Girlie Show," boarded the aircraft along
with the rest of the tour participants in San Juan, Puerto
Rico. The aircraft was bound for Buenos Aires,
Argentina. Before reaching Buenos Aires and while
MICELI was in the lavatory, the aircraft encountered
turbulence. MICELI claims that he sustained serious
personal injuries as a result.
MICELI contends that he was completely unaware
of the arrangements between Music Guide, Inc. and
Defendant MGM GRAND AIR, INC. He further
contends that no passenger ticket was ever given to him.
MGM brought a motion for summary adjudication
in the trial court based upon its tenth affirmative defense
that MICELI’s damages were limited by the Warsaw
Convention to $75,000. The trial court granted MGM’s
motion. (Apx. A) MICELI filed a petition for writ of
mandate seeking review of the summary adjudication
which was denied. Thereafter, MGM brought a motion
for summary judgment, permitting judgment to be taken
against it and in favor of MICELI in the amount of
$75,000. (Apx. B) The motion was granted and judgment
in
was entered in favor of MICELI in the sum of $75,000."
(Apx. G)
A timely appeal was filed by MICELI in which the
Court of Appeal determined that the Charter Contract
could not be a “passenger ticket.” By so doing, the Court
of Appeal has improperly added a format requirement for :
a “passenger ticket” which is not specified in the Warsaw
Convention. The opinion of the Court of Appeal, filed
December 12, 1996, was certified for publication and is,
so far as MGM is able to determine, the only reported
case in the United States to decide the question presented.
Miceli v. MGM Grand Air, Inc. (1996) 51 Cal.App.4th
702, 59 Cal.Rptr.2d 311.
REASONS FOR GRANTING THE WRIT
Si Review by the United States Supreme Court
is necessary to settle important questions of law regarding
the application of The Warsaw Convention to international
charter aircraft flights, an area of air transportation which
the California Court of Appeal recognized as an “issue of
fundamental importance to an increasing number of
international air travelers who board charter flights.” The
California Court of Appeal erroneously found that the
Charter Agreement could not be a passenger ticket and
1. The underlying action is brought by MARK
MICELI for personal injury and by ANDREA MICELI
for Loss of Consortium. Judgment was entered for the
plaintiffs jointly in the sum of $75,000.
ii.
resurrected a doctrine recently rejected by the United
States Supreme Court; that the Warsaw Convention
requires “adequate notice” of its provisions as a condition
of its applicability.
2. Review by the United States Supreme Court
is necessary to prevent misstatement, misinterpretation
and erroneous application of law in that the opinion of the
California Court of Appeal is one of first impression in
California and indeed this nation and the errors found in
that opinion will thus infuse themselves into the law of
every state and jurisdiction, especially as the use of
charter aircraft in international travel continues to expand.
3. Review by the United States Supreme Court
is necessary to prevent misstatement, misinterpretation
and erroneous application of law in that the opinion of the
California Court of Appeal ignores the recent decision by
this Court in Chan v. Korean Air Lines, Ltd. (1989) 490
U.S. 122, 109 S.Ct. 1676, 104 L.Ed.2d 113 which held
that the Warsaw Convention does not require that
passengers receive notice of its terms. This Court
specifically rejected that doctrine, disparaging the very
cases relied upon by the California Court of Appeal in its
opinion. Thus, unless the opinion of the California Court
of Appeal is corrected, the erroneous doctrine will be
perpetuated despite the contrary holding in Chan, supra.
3
I.
THE OPINION IMPROPERLY
IMPLIES A FORMAT PROVISION IN
AN INTERNATIONAL TREATY
The Warsaw Convention is an international treaty
ratified by the United States and is therefore the Supreme
Law of the Land. U.S. Constitution Art. VI. It applies to
all international air travel. Block v. Compagnie Nationale
Air France (Sth Cir. 1967) 386 F.2d 323, cert. denied,
(1968) 392 U.S. 905, 88 S.Ct. 2053, 20 L.Ed.2d 1363.
Article 1, section (1) of the Warsaw Convention states:
"(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 aircraft performed by an
air transportation enterprise. "
Section (2) defines "international transportation" as
meaning transportation where the place of departure and
place of destination contemplated in the contract are in
different countries which have adopted the Convention, or
where the place of departure and place of destination are
in the same country with a stopover in any other country.
The charter contract here calls for departure from
Montreal, Canada with a final destination of Los Angeles
and with various intermediate stopovers. Where the
charter of an aircraft for hire is for international travel,
the Warsaw Convention applies as it would to an ordinary
commercial flight. Block v. Compagnie Nationale Air
France (Sth Cir. 1967) 386 F.2d 323.
-8-
The Warsaw Convention provides for strict
liability of air carriers for injuries to passengers which
occur during international air transportation. Warsaw
Convention, Article 17. In exchange, that liability is
limited. Warsaw Convention, Article 22. The limitation
prescribed by the Warsaw Convention has been increased
to $75,000 USD by a collateral agreement required by the
United States for air carriers operating in this country.
This collateral agreement is commonly referred to as the
"Montreal Agreement." See Jn re: Air Disaster at
Lockerbie, Scotland, etc. (2d Cir. 1991) 928 F.2d 1267,
1270 fn.2.
The case before this Court involves the
interpretation of Article 3 of the Warsaw Convention.
"(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;
(b) the place of departure and of
destination; (c) The agreed stopping places,
provided that the 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 character; (d) The name and
address of the carrier or carriers; (e) A
statement that the transportation is subject
to the rules relating to liability established
by this convention. |
-9.
"(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 himself of those provisions of this
convention which exclude or limit his
liability."
In its opinion, the California Court of Appeal
determined that the Charter Agreement, a document which
contains all of the information required by Article 3,
nonetheless could not be a “passenger ticket.” The
California Court of Appeal reasoned that a ticket must be
issued to the specific passenger, that the passenger must
surrender the passenger ticket to the carrier before
boarding, showing thereby assent to the terms of the
ticket. The California Court of Appeal thereby rejected
MGM’s argument that the Charter Agreement was in
essence a single ticket for all of the passengers on the
“Girlie Show” tour because in the opinion of the California
Court of Appeal, MGM was required to issue “individual”
tickets or lose the liability limits.
The Warsaw Convention does not specify any such
requirements. Article 3 specifies only certain information
be included on the ticket. Although the California Court
of Appeal determined that a passenger ticket must be
issued to the individual passenger, in the individual
passenger’s name and surrendered by the passenger before
-10-
boarding to qualify as a passenger ticket, Article 3 does
not even require that the passenger’s name appear on the
document! There is no dispute that the Charter Contract
contained all of the information required by Article 3.
(Apx. I) There should therefore be no question that it
qualifies as a passenger ticket. (The second question
presented by this case, whether or not the “passenger
ticket” was “delivered” to MICELI was not addressed by
the California Court of Appeal since it had determined
that the Charter Agreement was not a ticket.)
In Chan v. Korean Air Lines, Ltd. (1989) 490 U.S.
122, 109 S.Ct. 1676, 104 L.Ed.2d 113 the United States
Supreme Court discussed the requirements for a legally
sufficient “passenger ticket” under Article 3 of the Warsaw
Convention. This Court stated that any document would
qualify as a “passenger ticket” unless it was a blank form
with no information on it.
“All that the second sentence of Article 3(2)
requires in order to avoid its sanction is the
“deliver[y]” of “a passenger ticket.”
Expanding this to mean “a passenger ticket
in compliance with the requirements of this
Convention” is rendered implausible by the
first sentence of Article 3(2), which
specifies that “[t]he ... irregularity ... of the
passenger ticket shall not affect the
existence or the validity of the contract of
transportation, which shall nonetheless be
subject to the rules of this convention.” It
is clear from this (1) that an “irregularity”
does not prevent a document from being a
Ade
“passenger ticket”; and (2) that an
“irregularity” in a passenger ticket does not
eliminate the contractual damages limitation
provided for by the Convention.
“Irregularity” means the “[qluality or state
of not conforming to rule or law,”
Webster’s Second International Dictionary
(1950), and in the present context the word
must surely refer to the rules established by
the Convention, including the notice
requirement. Thus, a delivered document
does not fail to qualify as a “passenger
ticket,” and does not cause forfeiture of the
damages limitation, merely because it
contains a defective notice. When Article
3(2), after making this much clear,
continues (in the second sentence)
“nevertheless, if a carrier accepts a
passenger without a passenger ticket
having been delivered, etc.” it can only be
referring to the carrier’s failure to
deliver any document whatever, or its
delivery of a document whose
shortcomings are so extensive that it
cannot be reasonably be described as a
“ticket” (for example, a mistakenly
delivered blank form, with no data filled
in.)” Chan v. Korean Air Lines, Ltd.
(1989) 490 U.S. 126, 128-129; 109 S.Ct.
1676, 104 L.Ed.2d 113 (emphasis added)
ee re RT ae
The Charter Agreement contains all of the
information required by Article 3. In fact, it contains
-12-
substantially more information than required by Article 3,
including the entire contract of carriage. The document
which MGM asserts herein is the legally sufficient
“passenger ticket” is arguably “irregular” in that it is
fifteen pages long, however it is not a blank form with no
data filled in. Thus, following Chan it cannot be said that
the Charter Agreement cannot be a “passenger ticket”
within the meaning of the Warsaw Convention.
The California Court of Appeal has seemingly
improperly inserted a cultural or customary bias into its
interpretation of The Warsaw Convention. The California
Court of Appeal has assumed that the passenger tickets
which we are all accustomed to receiving from a travel
agent are the only type of documents which the writers of
The Warsaw Convention had in mind when they used the
phrase “passenger ticket.” It is clear that the Warsaw
Convention does not specify a format for a passenger
ticket and what is required by that term must depend upon
the time and place of usage.
“At the time the Warsaw Conference was
held, October 1929, civil aviation was in its
infancy. The total airline operations in the
five years period 1925 to 1929 — in
domestic as well as foreign travel — were
only 400 million passenger miles. The
fatality rate was 45 per 100 million
passenger miles. This compares with the
rate of 0.55 fatalities per 100 million
passenger miles in 1965. ... The larger
airliners could carry 15 to 20 passengers at
cruising speeds of about 100 miles per hour
.
and over stages of about 500 miles. The
most advanced and popular United States
aircraft, the Lockheed Vega, which carried
six passengers and a pilot, had a cruising
speed of about 120 miles per hour and a
range of about 500 miles ... Lindberg had
flown the Atlantic only two years before.
The sole international air carrier in the
United States operated flights between
Havana and Key West.” Block v.
Compagnie Nationale Air France (5th Cir.
1967) 386 F.2d 323, 326. (including fn. 3)
It should not be reasoned that, in 1929, the
document which was envisioned as a “passenger ticket” is
the document in general use in air travel today. Indeed,
one ought not reason that the writers of the Warsaw
Convention, being drawn from countries all over the
world, collectively had a single vision of what a
“passenger ticket” should look like. Further, the
passenger tickets in general use today may have no
resemblance to the passenger tickets in use in the next
century. Even as the California Court of Appeal has
decided that a passenger ticket must fit its notion of a
passenger ticket, air carriers are taking full advantage of
electronic “Internet” transactions to reserve and confirm
passage on their flights without generating paper, so-
called “ticket-less” travel in which boarding is gained by
showing identification, not returning a coupon generated
by the carrier. The document containing the traditional
“ticket” information is generated and transmitted
electronically and may be printed out or not at the
discretion of the passenger. Under the decision of the
-14-
California Court of Appeal, this could not qualify as a
“passenger ticket” even if it were shown to give the entire
text of the Warsaw Convention, was proven to be
delivered electronically and was specifically assented to by
the passenger because it does not fit the format pre-
envisioned by the California Court of Appeal and cannot
be “torn off” at the gate upon entry to the aircraft. Having
done so, the California Court of Appeal has violated rules
of construction of international treaties, the Supreme Law
of the Land.
“[T]o alter, amend, or add to any treaty, by
inserting any clause, whether small or
great, important or trivial, would be on our
part an usurpation of power, and not an
exercise of judicial functions. It would be
to make, and not to construe a treaty.
Neither can this Court supply a casus
omissus in a treaty, any more than in law.
We are to find out the intention of the
parties by just rules of interpretation
applied to the subject matter, and having
found that, our duty is to follow it as far as
it goes, and to stop where that stops —
whatever may be the imperfections or
difficulties which it leaves behind. The
Amiable Isabella, 6 Wheat. 1, 71, 5 L.Ed.
191 (1821).” Chan, supra at p. 135.
The decision of the California Court of Appeal
improperly inserts into the Warsaw Convention a format
requirement for a “passenger ticket” despite the clear
language of this Court in Chan that any irregularity in a
EEO
-§%..
such a document does not deprive the carrier of the
liability limits.
Il
THE COURT OF APPEAL OPINION RESURRECTS
A DOCTRINE DISAVOWED BY THE U.S.
SUPREME COURT
In its opinion, the California Court of Appeal
opinion frames the issue for decision as:
“Specifically, can a contract for charter
between an international carrier and a third
party charterer constitute a ‘passenger
ticket’ within the meaning of the Warsaw
Convention when the passenger has no
relationship with the charterer, no
knowledge of the contract, and no
opportunity to see the contract or obtain
notice of the conventions liability limits?”
In so phrasing the issue, MGM GRAND AIR,
INC. contends the Court created errors of both fact and
law in that there was, in fact, a relationship between
MICELI and the charterer and in that the Warsaw
Convention applies irrespective of whether or not a given
passenger has notice of the limitation of liability. This
Court in Chan, supra rejected the reasoning of the very
cases relied upon by the California Court of Appeal.
Specifically, this Court found that the Warsaw Convention
applies to international transportation whether or not the
passenger receives any adequate notice of its application
to the travel. Thus, the issue before the California Court
it.
of Appeal was whether or not the Charter Agreement
qualifies as a passenger ticket under the Warsaw
Convention and the fact that the “passenger has no
relationship with the charterer, no knowledge of the
contract, and no opportunity to see the contract or obtain
notice of the conventions liability limits” is wholly
irrelevant to that determination.
The specific question before this Court in Chan,
supra was whether “Article 3 of the Warsaw Convention
removes the protection of limited liability if a carrier fails
to provide adequate notice of the Convention’s liability
limitation.” Chan, supra at p. 126. This Court
determined that failure to give adequate notice to the
passenger did not remove the liability limits. The
plaintiffs in that case relied upon several cases which held
that delivery of the passenger ticket must be made in time
for the passenger to have the opportunity to protect
against the liability limits by purchasing additional
insurance. The Supreme Court rejected that reasoning
because the Warsaw Convention has no such requirement.
“Although Article 3(1)(e) specifies that a
passenger ticket shall contain “[a] statement
that the transportation is subject to the rules
relating to liability established by this
convention” nothing in Article 3 or
elsewhere in the Convention imposes a
sanction for failure to provide an “adequate”
statement. The only sanction in Article 3
appears in the second clause of Article 3(2),
which subjects a carrier to unlimited
liability if it “accepts a passenger without a
-..
passenger ticket having been delivered.”
Several courts have equated non-delivery of
a ticket, for purposes of this provision,
with delivery of a ticket that fails to provide
adequate notice of the Warsaw limitation.
... We cannot accept this interpretation.”
Chan, supra at p. 127 - 128.
In specifying cases which erroneously held that
inadequate notice was the equivalent of no notice, this
Court identified two cases heavily relied upon by the
California Court of Appeal in its opinion:
“See also Warren v. Flying Tiger line, Inc.,
352 F.2d 494 (CA9 1965)(conditioning
liability limitation upon delivery of tickets
in such manner as to afford passengers a
reasonable opportunity to take measures to
protect against liability limitation); Mertens
v. Flying Tiger Line, Inc., 341 F.2d 851
(CA2)(same), cert. denied, 382 U.S. 816,
86 S.Ct. 38, 15 L.Ed.2d 64 (1965)...”
Chan, supra at p. 128.
Further, the case most heavily relied upon by the
California Court of Appeal, Block v. Compagnie
Nationale Air France, (Sth Cir. 1967) 386 F.2d 323 relies
upon those two cases to support part of its reasoning.
Thus, the California Court of Appeal has resurrected the
erroneous doctrine that the Warsaw Convention requires
“adequate” notice as a condition of its applicability. Since
this is the only published case on this point, this Court
-18-
should not allow the reasoning of these discredited
opinions to be reintroduced into this area of law.
The California Court of Appeal opinion further
compounds the problem in prolonging this discredited
doctrine by confusing it in the only issue it decided,
whether or not the Charter Agreement qualifies as a
“passenger ticket.” The totality of this case involves two
questions:
(1) Whether the Charter Agreement document
complies with the necessary requirements of the
Warsaw Convention; and
(2) Whether it was delivered to MICELI.
While the California Court of Appeal purported to
decide only the first question, the reasoning employed
shows that its determination was based in part on the
question of delivery. Such loose reasoning ought not
become the only published opinion on the question of
what constitutes a legally sufficient “passenger ticket”
under the Warsaw Convention.
-19-
CONCLUSION
For all of the above reasons, Petitioner MGM
GRAND AIR, INC. respectfully requests that this Court
issue a writ of certiorari to the California Court of Appeal
to review its decision and opinion in this action.
Respectfully submitted,
PETER P. BROTZEN
GREGORY L. ANDERSON
DWYER, DALY, BROTZEN & BRUNO, LLP
Attorneys for Petitioner and Defendant
MGM GRAND AIR, INC.
APPENDIX A
APPENDIX A
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF LOS ANGELES
DATE: (19/21/95 DEPT 44
HONORABLE REGINALD A. DUNN JUDGE
L. MITCHELL, CSL Deputy Sheriff
BC110388
MARK MICELI, ET AL.
Plaintiffs
Vv.
MGM GRAND AIR, INC., ET AL.
Defendants.
NATURE OF PROCEEDINGS:
DEFENDANT MGM GRAND AIR, INC.’S
MOTION FOR SUMMARY ADJUDICATION -
SUBMITTED MATTER
The Court having taken the above Motion under submission
on September 15, 1995, now rules as follows:
The Motion of MGM Grand Air, Inc. for an order for
summary adjudication in its favor with regard to its 10th
affirmative defense is granted.
The Court concludes that the charter contract is a ticket
within the meaning of the Warsaw Convention. The charter
A-1
contract contains all of the information required by Article
3 of the Warsaw Convention. The contract agreement was
signed by MGM, Inc., and by Music Guide Inc. The places
of departure and destination including stopping places are set
forth in attachment B. Delivery of the ticket (charter
contract) to the person arranging the travel for the
passengers is sufficient delivery under the Warsaw
Convention. The Court finds that the incident complained
of in the Plaintiffs’ complaint is governed by the terms and
conditions of the Warsaw Convention and that Plaintiffs’
damages are limited therefore to $75,000.
A-2
APPENDIX B
“
APPENDIX B
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF LOS ANGELES
DATE: 02/21/96 DEPT 44
HONORABLE REGINALD A. DUNN JUDGE
L. MITCHELL, CSL Deputy Sheriff
BC110388
MARK MICELI, ET AL.
Plaintiffs
Vv
MGM GRAND AIR, INC., ET AL.
Defendants.
NATURE OF PROCEEDINGS:
MOTION OF DEFENDANT, MGM GRAND
AIR, INC., FOR JUDGMENT IN FAVOR
OF PLAINTIFF
Motion is heard and granted: Judgment granted in favor of
Plaintiffs Mark Miceli and Andrea Miceli jointly and against
Defendant MGM Grand Air, Inc. in the sum of $75,000.
Moving Party to prepare judgment.
On the Court’s own motion, Further Status Conference set
March 25, 1996 is ordered advanced and vacated.
B-1
APPENDIX C
as
ee
APPENDIX C
59 Cal.Rptr.2d 311, 51 Cal.App.4th 702, Miceli v. MGM
Grand Air, Inc., (Cal.App. 2 Dist. 1996)
*311 59 Cal.Rptr.2d 311
51 Cal.App.4th 702, 96 Cal. Daily Op. Serv. 9019,
96 Daily Journal D.A.R. 14,919
Mark MICELI et al, Plaintiffs and Appellants,
v.
MGM GRAND AIR, INC., Defendant and Respondent
No. B101950
Court of Appeal, Second District, Division 4, California
Dec. 12, 1996.
International air passenger who was injured aboard
chartered flight brought negligence action against air carrier.
Passenger’s wife asserted consortium claim. The Superior
Court, Los Angeles County, No. BC 110388, Reginald A.
Dunn, J., granted summary adjudication for carrier based on
its affirmative defense that plaintiffs’ damages were limited
by Warsaw Convention to $75,000. Plaintiffs appealed.
The Court of Appeal, Aranda, J., assigned, held that charter
contract between air carrier and charterer is not “passenger
ticket” for all who board aircraft under Warsaw Convention.
*312 Law Offices of [51 Cal.App.4th 704] Ian Herzog,
Santa Monica, Evan D. Marshall, Rolling Meadows, IL, and
Thomas Yuhas, Santa Monica, for Plaintiffs and Appellants.
Chase, Rotchford, Drukker & Bogust, Peter P. Brotzen and
Gregory L. Anderson, Los Angeles, for Defendant and
Respondent.
ARANDA, Associate Justice. (FN*)
C-]
PROCEDURAL HISTORY
Mark and Andrea Miceli (collectively referred to as
“appellants”) filed a complaint on August 9, 1994, for
personal injuries sustained by Mark Miceli on October 28,
1993, when he was an international air passenger aboard a
chartered MGM Grand Air, Inc. (hereinafter “MGM”)
flight which hit turbulent weather between San Juan, Puerto
Rico and Buenos Aires, Argentina. MGM filed its answer
and filed a Petition for Removal to the United States District
Court for the Cental District of California. The District
Court thereafter remanded the action to the Superior Court
upon motion by the appellants.
On May 19, 1995, MGM served and filed a Motion for
Summary Adjudication based upon its Tenth Affirmative
Defense that appellants’ damages were limited by the
Warsaw Convention to $75,000. The motion was heard and
argued on September 15, 1995, and on September 21, 1995,
the trial court issued a minute order granting the motion. In
October 1995 appellants filed a Petition for Writ of Mandate
(Case Number B096355) seeking review of the summary
adjudication order by extraordinary writ. The petition was
denied by this court. Thereafter, on February 21, 1996,
MGM moved for entry of judgment in favor of appellants in
that amount. The motion was granted and judgment was
entered on March 5, 1996. Appellants filed a timely Notice
of Appeal.
[51 Cal.App.4th 705] STATEMENT OF FACTS.
Mark Miceli (Miceli) was employed as video director for
“Madonna’s Girlie Show” world tour pursuant to his contract
C-2
_——
with Music Tours, Inc. On October 28, 1993, he was a
passenger on a charter flight carrying the cast and crew of
the tour aboard an MGM Grand Air plane. Another entity,
Music Guide, Inc., had contracted with MGM for the
charter.
*313 The charter originated in Los Angeles and had made
a previous stop in Montreal for a concert before proceeding
to San Juan. Miceli was not provided with a ticket or a
baggage check. He alleges he had no knowledge of the
charter agreement between Music Guide and MGM. The
itinerary included stops in Argentina, Brazil and Mexico. It
is undisputed that Canada, the United States, Argentina,
Brazil and Mexico have all ratified the Warsaw Convention.
During a flight leg between Puerto Rico and Argentina and
the aircraft encountered severe turbulence. Miceli alleges in
his complaint that the flight crew flew the plane into an area
of known high turbulence, notwithstanding the risks to the
passengers. While he was in the lavatory, the plane was
abruptly tossed about resulting in serious personal injuries
to Miceli. His complaint alleges causes of action for
negligence, willful misconduct and loss of consortium. The
complaint further alleges loss of consortium by Andrea
Miceli based upon the negligence or willful misconduct of
MGM.
ISSUES
1. Was the trial court correct in ruling that the charter
agreement between MGM and Music Guide constituted a
“passenger ticket” for all aboard the flight within the
meaning of the Warsaw Convention?
C-3
2. Did the trial court act in excess of its jurisdiction in
summarily adjudicating the damage issue?
DISCUSSION
We note this appeal presents an issue of first impression in
this state concerning the application of the Warsaw
Convention, officially entitled “Convention for the
Unification of Certain Rules Relating to International
Transportation by Air” (hereinafter the “Warsaw
Convention”). Specifically, can a contract for charter
between an international carrier and a third party charterer
constitute a “passenger ticket” within the meaning of the
Warsaw Convention when the passenger [51 Cal.App.4th
706] has no relationship with the charter, no knowledge of
the contract, and no opportunity to see the contract or obtain
notice of the convention’s liability limitations?
[1] The Warsaw Convention is an international treaty
ratified by the United States in 1934 and is pursuant to the
United States Constitution, the supreme law of the land.
(U.S. Const., art. VI, cl. 2.) It applies to all international
commercial air travel and limits the carrier’s liability unless
the plaintiff establishes “willful misconduct” on the part of
the airline. (In re Air Crash Disaster (6th Cir. 1996) 86
F.3d 498, 544; Pflug v. Egyptair Corp. (2d Cir. 1992) 961
F.2d 26, 28; see In re Air Disaster at Lockerbie, Scotland
(2nd Cir. 1991) 928 F.2d 1267 for a thorough history of the
Warsaw Convention and its general applicability to air
travel.)
[2] The Warsaw Convention also applies to all
international charter flights. (Block v. Compagnie Nationale
C-4
Air France (Sth Cir. 1967) 386 F.2d 323, 326, cert. den.
(1968) 392 U.S. 905, 88 S.Ct. 2053, 20 L.Ed.2d 1363; P.T.
Airfast Services, Indonesia v. Superior Court (1983) 139
Cal.App.3d 162, 166, 188 Cal.Rptr. 628.) Its language is
clear and unambiguous. Article 1, section (1) states: “(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
aircraft performed by an air transportation enterprise.”
[3] While the Warsaw Convention provides for strict
liability of air carriers for injuries to passengers which occur
during international air travel, that liability is limited. The
limitation prescribed by the convention is now set at
$75,000 by a collateral agreement, known as the “Montreal
Agreement,” which is required by the United States for all
air carriers operating in this country. (Block v. Compagnie
Nationale Air France, supra, at p. 325 fn. 1; In re Air Crash
Disaster, supra, 86 F.3d at p. 544.)
[4] MGM argues that the liability limitations of the
Warsaw Convention and Montreal Agreement are applicable
in this case. *314 Appellants argue that the limitations do
not apply in this particular case. All parties agree we are
dealing herein with an interpretation of Article 3 of the
Warsaw Convention.
Article 3 reads as follows: ‘(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; [{](b) The place of departure and of
destination; [{](c) The agreed stopping places, provided that
the carrier may reserve the right to alter the stopping places
C-5
in case of necessity, and that if he exercises that right, the
alteration shall not have the effect of [51 Cal.App.4th 707]
depriving the transportation of its international character;
[{}(d) The name and the address of the carrier or carriers;
| [{j(e) A statement that the transportation is subject to the
| rules relating to liability established by this convention.
| [{\(2) The absence, irregularity, or loss of that 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 himself of
those provisions of this convention which exclude or limit
his liability.” (Emphasis added.)
This case presents an issue of fundamental importance to
an increasing number of international air travelers who
board charter flights. If a passenger boards such a flight
without having received a ticket from the carrier, tour
director or charterer and thus fails to receive any notice of
the Warsaw Convention liability limitations, is the fact that
the charterer entered into a contract with the carrier
specifying the places of departure and destination sufficient
to satisfy the requirements of Article 3 of the convention that
the carrier must “deliver a passenger ticket” prior to
accepting the passenger as a condition of limited liability for
personal injuries? The critical question is what precisely
constitutes a “passenger ticket.”
MGM successfully argued to the trial court that its contract
with Music Guide, the charterer, constituted a “passenger
ticket” for all aboard. Appellants argue that the consequence
of the lack of delivery to the individual passenger of a
C-6
|
written instrument deprives that traveler of notice of liability
limitation, thereby effectively eviscerating the notice
requirement of the Warsaw Convention. We agree.
[5] The rule that words and phrases used in an enactment
are presumed to have a meaning and that to perform a useful
function they are to be given their common and ordinary
meaning applies to the interpretation of international
agreements as well. (Suzuki Motor v. Superior Court (1988)
200 Cal.App.3d 1476, 1481, 249 Cal.Rptr. 376 [interpreting
the Hague Convention for service of process].) “In
construing a treaty, the terms thereof are given their
ordinary meaning in the context of the treaty and are
interpreted, in accordance with that meaning, in the way that
best fulfills the purpose of the treaty.” (Xerox Corp. v. U.S.
Fed.Cir. 1994) 41 F.3d 647, 652.)
We have in Article 3(2) of the Warsaw Convention plain
language, i.e., “If the carrier accepts a passenger without a
passenger ticket having been delivered, he shall not be
entitled to avail himself of those provisions of this
convention which limit his liability.” If is conceded by all
parties that Miceli did not receive any written instrument
evidencing his [51 Cal. App.4th 708] contract of passage.
MGM’s assertion that a charter agreement containing certain
information analogous to a ticket is unsupported by any
case. In each case in which the Warsaw Convention has
previously been held to limit liability of the air carrier, a
ticket separate and distinct from the charter agreement was
issued to each individual passenger. (See Block v.
Compagnie Nationale Air France, supra, 386 F.2d 323;
Warren v. Flying Tiger Line, Inc. (9th Cir. 1965) 341 F.2d
851.)
C-7
MGM argues that it need not issue passenger tickets to
maintain its limited liability. Yet, the Second Circuit of the
United States in Block emphasizes the necessity for “an *315
agreement between the carrier and passenger as to
transportation and as to places of departure and arrival” as
evidenced in a passenger ticket and concluded that “any
agreement between the owner-carrier and a third person, the
charterer, is irrelevant to Warsaw purposes.” (Id. at p. 334,
original italics.)
Block involved an Air France chartered flight by the Art
Association of Atlanta. Air France dealt with the Art
Association in making the flight details and the Association
secured the passengers. Individual passenger tickets were
issued by Air France to each passenger. The court upheld
the Warsaw Convention limitations.
In limiting the air carrier’s liability in conformance with
the Warsaw Convention and the Montreal Agreement, the
Second Circuit noted that “[t]he fatal flight developed out of
three sets of contractual relationships: first, the relationship
between Air France and the Atlanta Art Association created
by their ‘International Charter Flight Agreement’; second,
the more informal set of relationships between the Art
Association and the individual passengers; and third, the
relationship between the individual passengers and Air
France, concluded by the airline’s delivery to each
passenger of a personal ticket for the flight.” (Id. at p. 335,
emphasis added.)
In Chan v. Korean Air Lines, Ltd. (1989) 490 U.S. 122,
109 S.Ct. 1676, 104 L.Ed.2d 113, Justice Scalia, on behalf
of a majority of the United States Supreme Court, clearly
C-8
dictates the consequences when an air carrier fails to issue
individual passenger tickets as required by the Warsaw
Convention. “The only sanction in Article 3 appears in the
second clause of Article 3(2), which subjects a carrier to
unlimited liability if it ‘accepts a passenger without a
passenger ticket having been delivered.’ ” (Id. at p. 127,
109 S.Ct. at p. 1680.)
In this case MGM argues that under Chan the charter
agreement is a passenger ticket simply because it contained
all the requirements of Article [51 Cal.App.4th 709] 3(1).
MGM’s position is that “[t]he fact that the ‘ticket’ is fifteen
pages long and contains all the terms of the contract does not
mean that it is not a ticket.” While Chan holds that a
passenger ticket “irregularity,” i.e., use of eight-point type
rather than the required ten-point type, is not fatal to its
determination that it is a ticket under Warsaw Convention
nomenclature, the irregularity claimed herein by respondent
of substituting the charter agreement for a passenger ticket
is preposterous.
The Warsaw Convention refers to the “contract” between
carrier and passenger in some 13 provisions. See (Block v.
Compagnie Nationale Air France, supra, 386 F.2d 323 at
p. 332) for a discussion of a third party who can “contract”
passage vis-a-vis a “passenger ticket.” By contrast, the term
“passenger ticket” appears only in Article 3. If the Warsaw
Convention had wanted to use the terms interchangeably, it
would most certainly have done so. We note that even if
Miceli had received a copy of the 15-page charter agreement
between MGM and Music Guide, receipt of the agreement
in and of itself have given him any right to passage on the
aircraft. Miceli was not a party to the contract and therefore
C-9
it created no relationship between him and the carrier or
even between him and the charterer, which is the function of
a ticket.
Tickets are issued to passengers, not to charterers. As is
clear in Block, Air France became subject to the Convention
not because it assumed contractual responsibility for the
transportation of passengers and controlled the aircraft, but
because it agreed to carry the particular passenger in
question as evidenced by the issuance of a ticket to that
passenger. (/d. at p. 353.) The passenger’s possession and
surrender of the ticket containing notice of the limitation of
liability pursuant to the Warsaw Convention is proof of
delivery and boarding of the aircraft is the passenger’s
acceptance of the terms therein, including any liability
limitations imposed thereon.
We therefore hold that the charter contract between the air
carrier and the charterer does not limit the air carrier’s
liability to third parties absent the issuance of a “passenger
*316. ticket” meeting the requirements of the Warsaw
Convention. We further hold that the charter agreement is
not a “passenger ticket” for all who board an aircraft under
the Warsaw Convention. In this particular situation MGM
“accept[ed] a passenger without a passenger ticket having
been delivered.” Since MGM did not adhere to the
provisions of the Convention by issuing individual
“passenger tickets,” it is thereby “not entitled to avail [itself]
of those provisions of the Convention which limit its
liability.”
Having decided the first issue herein, there is no need for
our consideration of the second issue.
C-10
[51 Cal.App.4th 710] CONCLUSION
The judgment herein is reversed. The matter is remanded
to the trial court for further action in accord with this
decision. Costs are awarded to appellants.
CHARLES S. VOGEL, P.J., and EPSTEIN , J., concur.
FN* Assigned by the Chairperson of the Judicial Council.
APPENDIX D
Pe worthioln,
APPENDIX D
OFFICE OF THE CLERK
COURT OF APPEAL
STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
JOSEPH A. LANE, CLERK
DIVISION: 4 DATE: 01/08/97
Chase, Rotchford, Drukker & Bogust
Peter P. Brotzen
700 So. Flower Street
Suite 500
Los Angeles, CA 90017
RE: Miceli, Mark
vs.
MGM Grand Air, Inc.
2 Civil B101950
Los Angeles No. BC 097689
THE COURT:
Petition for rehearing denied.
D-1
APPENDIX E
SO
a
APPENDIX E
SUPREME COURT
FILED
March 19, 1997
Robert Wandruff Clerk
DEPUTY
Second Appellate District, Division Four, No. B101950
S$058566
IN THE SUPREME COURT OF CALIFORNIA
MARK MICELI, ET AL., Appellants
v.
MGM GRAND AIR, INC. Respondent
Respondent’s petition for review DENIED
GEORGE
Chief Justice
E-1
APPENDIX F
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APPENDIX F
COURT OF APPEAL
OF THE STATE OF CALIFORNIA
FOR THE SECOND APPELLATE DISTRICT
DIVISION: 4
Chase, Rotchford, Drukker & Bogust
Peter P. Brotzen
700 So. Flower Street
Suite 500
Los Angeles, CA 90017
RE: Miceli, Mark
Vs.
MGM Grand Air, Inc.
2 Civil B101950
Los Angeles No. BC 097689
* * REMITTITUR NOTICE * *
Notice is hereby given that the Remittitur has been issued
this date and that the opinion, decision or order entered in
the above entitled cause on 12/12/96 is now final.
** Reversed & Remanded To Trial Court W/Directions. **
Appellant(s) To Recover Costs On Appeal.
April 2, 1997
Joseph A. Lane, Clerk
F-]
APPENDIX G
Hs
r
cpt
APPENDIX G
SUPERIOR COURT
OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
FILED
March 5, 1996
Clerk
MARK MICELI, ANDREA MICELI,
Plaintiffs,
vs.
MGM GRAND AIR, INC., a corporation,
DOE 1, DOE 2, DOE 3, DOE 4, DOE 5,
DOE 6, and DOES 7 through 50, inclusive,
Defendants.
Case No. BC 110 388
JUDGMENT IN FAVOR OF PLAINTIFFS
On February 21, 1996, the Motion by Defendant MGM
GRAND AIR, INC. for Judgment in Favor of Plaintiffs
came on for hearing in Department 44 of this Court, the
Honorable Reginald Dunn, Judge of the Superior Court
presiding. Plaintiffs and Defendant appeared through their
attorneys of record.
Upon consideration of the moving papers and there being
no Opposition made by Plaintiffs, GOOD CAUSE appearing
therefore, the Court granted Defendant’s Motion.
Therefore:
IT IS ADJUDGED, ORDERED AND DECREED:
1. That Plaintiffs MARK MICELI and ANDREA
MICELI recover from Defendant MGM GRAND AIR,
INC. the total sum of Seventy Five Thousand dollars
($75,000.00);
2. That the clerk of the court shall enter said
judgment forthwith.
Dated: March 5, 1996 REGINALD A. DUNN _
Honorable Reginald Dunn,
Judge of the Superior Court
G-2
APPENDIX H
APPENDIX H
CONVENTION FOR THE UNIFICATION
OF CERTAIN RULES RELATING TO
INTERNATIONAL TRANSPORTATION BY AIR
(“WARSAW CONVENTION’)
Concluded at Warsaw October 12, 1929. And Entered Into
Force For The United States October 29, 1934, Subject To
A Reservation.
The President of the German Reich, the Federal President 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 British Dominions beyond the
Seas, Emperor of India, the President of the Hellenic
Republic, His Most Serene Highness 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 Rumania, His Majesty the King of
Sweden, the Swiss Federal Council, the President of the
H-1
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 transportation by air
in respect of the documents used for such transportation and
of the liability of the carrier,
Have nominated to this end their respective
Plenipotentiaries, who, being thereto duly authorized, have
concluded and signed the following convention:
CHAPTER I. SCOPE-DEFINITIONS
ARTICLE 1
(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 aircraft performed by an air transportation
enterprise.
(2) For the purposes of this convention the expression
“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 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 the same High Contracting Party shall not be
H-2
deemed to be international for the purposes of this
convention.
(3) Transportation to be performed by several successive
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 single contract or of
a series of contracts, and it shall not lose its international
character merely because one contract 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.
ARTICLE 2
(1) This convention shall apply to transportation
performed 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.
CHAPTER II. TRANSPORTATION DOCUMENTS
Section I - Passenger Ticket
ARTICLE 3
(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;
(b) The place of departure and of destination;
H-3
(c) The agreed stopping places, provided that the
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 character;
(d) The name and address of the carrier or carriers;
(e) A statement that the transportation is subject to
the rules relating to liability established 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 delivered he shall not be entitled to avail himself of
those provisions of this convention which exclude or limit
his liability.
Section II - Baggage Check
ARTICLE 4
(1) For the transportation of baggage, 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 carrier.
(3) The baggage check shall contain the following
particulars:
(a) The place and date of issue;
(b) The place of departure and of destination;
) (c) The name and address of the carrier or carriers;
Mi (d) The number of the passenger ticket;
i H-4
(e) A statement that delivery of the baggage will be
made to the bearer of the baggage check:
(f) The number and weight of the packages;
(g) The amount of the value declared in accordance
with article 22(2);
(h) A statement that the transportation is subject to
the rules relating to liability established by this convention.
(4) The absence, irregularity, 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 check does not contain the particulars set out at (d),
(f), and (h) above, the carrier shall not be entitled to avail
himself of those provisions of the convention which exclude
or limit his liability.
Section III - Air Waybill
ARTICLE 5
(1) Every carrier of goods has the right to require the
consignor to make out and hand over to him a document
called an “Air waybill’: every Consignor has the right to
require the carrier to accept this document.
(2) The absence, irregularity, or loss of this document
shall not affect the existence or the validity of the contract of
transportation which shall, subject to the provisions of
article 9, be none the less governed by the rules of this
convention.
ARTICLE 6
(1) The air waybill shall be made out by the consignor in
three original parts and be handed over with the goods.
H-5
(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 consignor
to make out separate waybills when there is more than one
package.
ARTICLE 8
The air waybill shall contain the following
particulars:
(a) The place and date of its execution;
(b) The place of departure and of destination;
(c) The agreed stopping places, provided that the
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 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;
es
H-6
|
(g) The nature of the goods;
(h) The number of the packages, the method of
packing, and the particular marks or numbers upon them;
(i) The weight, the quantity, the volume, or
dimensions of the goods;
(j) The apparent condition 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;
(1) If the goods are sent for payment on delivery, the
price of the goods, and, if the case so requires, the amount
of the expenses incurred;
(m) The amount of the value declared in accordance
with article 22(2);
(n) The number of parts of the air waybill;
(0) The documents handed to the carrier to
accompany the air waybill;
(p) The time fixed for the completion of the
transportation and a brief note of the route to be followed,
if these matters have been agreed upon;
(q) A statement that the transportation is subject to
the rules relating to liability established by this convention.
ARTICLE 9
If the carrier accepts goods without an air waybill having
been made out, or if the air waybill does not contain all the
particulars set out in article 8(a) to (i), inclusive, and (q), the
carrier shall not be entitled to avail himself of the provisions
of this convention which exclude or limit his liability.
H-7
eI eee es
ARTICLE 10
(1) The consignor shall be responsible for the correctness
of the particulars and statements relating to the goods which
he inserts in the air waybill.
(2) The consignor shall be liable for all damages suffered
by the carrier or any other person by reason of the
irregularity, incorrectness or incompleteness of the said
particulars and statements.
ARTICLE 11
(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 consignor, or
relate to the apparent condition of the goods.
ARTICLE 12
(1) Subject to his liability to carry out all his obligations
under the contract of transportation, the consignor shall have
the right to dispose of the goods by withdrawing 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 destination, or in the
course of the journey to a person other than the consignee
named in the air waybill, or by requiring them to be
returned to the airport of departure. He must not exercise
H-8
this right of disposition in such a way as to prejudice the
carrier or other consignors, and he must repay any expenses
occasioned by the exercise of this right.
(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 production 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 accordance
with article 13, below. Nevertheless, if the consignee
declines to accept the waybill or the goods, or if he cannot
be communicated with, the consignor shall resume his right
of disposition.
ARTICLE 13
(1) Except in the circumstances set out in the preceding
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 the 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 after
the date on which they ought to have arrived, the consignee
H-9
shall be entitled to put into force against the carrier the
rights which flow from the contract of transportation.
ARTICLE 14
The consignor and the consignee can respectively enforce
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
(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 consignor or from the consignee.
(2) The provisions of articles 12, 13, and 14 can only be
varied by express provision in the air waybill.
ARTICLE 16
(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 the
goods can be delivered to the consignee. The consignor
shall be liable to the carrier for any damage occasioned 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 enquire into the
correctness or sufficiency of such information or documents.
H-10
CHAPTER III. LIABILITY OF THE CARRIER
ARTICLE 17
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 accident 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
(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 which
the baggage or goods are in the charge of the carrier,
whether in an airport or on board an aircraft, or, in the case
of a landing outside an airport, in any place whatsoever.
(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 transportation takes
Place in the performance of a contract for transportation by
air, for the purpose of loading, delivery or transshipment,
any damage is presumed, subject to proof to the contrary, to
have been the result of an event which took place during the
transportation by air.
ARTICLE 19
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The carrier shall be liable for damage occasioned by delay
in the transportation by air of passengers, baggage, or
goods.
ARTICLE 20
(1) The carrier shall not be liable if he 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 goods and baggage 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 respects, he
and his agents have taken all necessary measures to avoid
the damage.
ARTICLE 21
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 liability.
ARTICLE 22 —
(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 payments, the equivalent
capital value of the said payments shall not exceed 125,000
francs. Nevertheless, by special contract, the carrier and the
passenger may agree to a higher limit of liability.
(2) In the transportation of checked baggage and of goods,
the liability of the carrier shall be limited to a sum of 250
H-12
francs per kilogram, unless the consignor has made, at the
time when the package was handed over to the Carrier, 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.
(3) As regards objects of which the passenger takes charge
himself the liability of the carrier shall be limited to 5,000
francs per passenger.
(4) The sums mentioned above shall be deemed to refer to
the French franc consisting of 65-1/2 milligrams of gold at
the standard of fineness of nine hundred thousandths. These
sums may be converted into any national currency in round
figures.
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.
ARTICLE 24 :
(1) In the cases covered by articles 18 and 19 any action
for damages, however founded, can only be brought subject
to the conditions and limits set out by this convention.
(2) In the cases covered by article 17 the provisions of the
preceding paragraph shall also apply, without prejudice to
the questions as to who are the persons who have the right
to bring suit and what are their respective rights.
H-13
ARTICLE 25
(1) The carrier shall not be entitled to avail himself of the
provisions of this convention which exclude or limit his
liability, if the damage is caused by his wilful misconduct or
by such default on his part as, in accordance with the law of
the court to.which the case is submitted, is considered 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.
ARTICLE 26
(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
condition and in accordance with the document of
transportation.
(2) In case 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.
(3) Every complaint must be made in writing upon the
document of transportation or by separate notice in writing
(4) Failing complaint within the times aforesaid, no action
shall lie against the carrier, save in the case of fraud on his
part.
H-14
ARTICLE 27
In the case of the death of the person liable, an action for
damages lies in accordance with the terms of this convention
against those legally representing his estate.
ARTICLE 28
~ (1) An action for damages must be brought, at the option
of the plaintiff, in the territory of one of the High
Contracting Parties, either before the court of the domicile
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 place of destination.
(2) Questions of procedure shall be governed by the law
of the court to which the case is submitted.
ARTICLE 29
(1) The right to damages shall be extinguished 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 have 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.
ARTICLE 30
(1) In the case of transportation to be performed by
various successive carriers and falling within the definition
set out in the third paragraph of article 1, each carrier 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
H-15
transportation insofar as the contract deals with that part of
the transportation which is performed under his supervision.
(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 during 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.
(3) 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 carrier,
and further, each may take action against the carrier who
performed the transportation during which the destruction,
loss, damage, or delay took place. These carriers shall be
jointly and severally liable to the passenger or to the
consignor or consignee.
CHAPTER IV. PROVISIONS RELATING TO
COMBINED TRANSPORTATION
ARTICLE 31
(1) In the case of combined transportation performed
partly by air and partly by any other mode of transportation,
the provisions of this convention shall apply only to the
transportation by air, provided that the transportation by air
fails within the terms of article 1.
(2) Nothing in this convention shall prevent the parties in
the case of combined transportation from inserting in the
document of air transportation conditions relating to other
modes of transportation, provided that the provisions of this
convention are observed as regards the transportation by air.
H-16
CHAPTER V. GENERAL AND FINAL PROVISIONS
ARTICLE 32
Any 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 applied,
or by altering the rules as to jurisdiction, shall be null and
void. Nevertheless for the transportation of goods
arbitration causes 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
Nothing contained in this convention shall prevent the
carrier either from refusing to enter into any contract of
transportation or from making regulations which do not
conflict with the provisions of this convention.
ARTICLE 34
This convention shall not apply to 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, nor shall it
apply to transportation performed in extraordinary
circumstances outside the normal scope of an air carrier’s
business.
ARTICLE 35
The expression “days” when used in this convention means
current days, not working days.
H-17
ARTICLE 36
This convention is drawn up in French in a single copy
which shall remain deposited in the archives of the Ministry
for Foreign Affairs of Poland and of which one duly
certified copy shall be sent by the Polish Government to the
Government of each of the High Contracting Parties.
ARTICLE 37
(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.
(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 deposit 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 deposits its instrument of
ratification on the ninetieth day after deposit.
(3) The adherence shall take effect as from the ninetieth
day after the notification made to the Government of the
Republic of Poland.
ARTICLE 39
(1) Any one of the High Contracting Parties may
denounce this convention by a notification addressed to the
Government of the Republic of Poland, which shall at once
inform the Government of each of the High Contracting
Parties.
(2) Denunciation shall take effect six months after the
notification of denunciation, and shall operate only as
H-18
regards the party which shall have proceeded to
denunciation.
ARTICLE 40
(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 convention
does not apply to all or any of its colonies, protectorates,
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
subsequently 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 authority or
any other territory subject to its sovereignty or to its
authority 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 sovereignty or
to its authority, or any other territory under its suzerainty.
ARTICLE 41
Any High Contracting Party shall be entitled not earlier
than two years after the coming into force of this convention
to call for the assembling of a new international conference
in order to consider any improvements which may be made
in this convention. To this end it will communicate with the
Government of the French Republic which will take the
necessary measures to make preparations for such
conference.
H-19
This convention, done at Warsaw on October 12, 1929,
shall remain open for signature until January 31, 1930.
ADDITIONAL PROTOCOL WITH REFERENCE TO
ARTICLE 2
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 performed
directly by the state, its colonies, protectorates, or mandated
territories, or by any other territory under its sovereignty,
suzerainty, or authority.
[Adherence to this treaty on part of United States was
proclaimed by the President on October 29, 1934. 49 Stat.
3000)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
Explanatory Notes:
The Warsaw Convention was amended by the Protocol
signed at the Hague, Netherlands, in 1955 which provided
for liability limitations of approximately $16,000. This
protocol was never ratified by the United States.
Other Provisions:
Parties. The parties to the Convention for the
Unification of Certain Rules Relating to International
Transportation by Air, with Additional Protocol are:
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Afghanistan
Algeria
Antigua & Barbuda 1
Argentina
Australia 2
Austria
Bahamas, The
Bangladesh
Barbados
Belgium
Benin
Botswana
Brazil
Bulgaria
Burma
Cameroon
Canada 3
Chile 3
China
Colombia
Congo
Cuba 3
Cyprus
Czechoslovakia
Denmark, not including
Greenland
Ecuador
Egypt
Ethiopia
Fiji
Finland
H-21
France, including French
colonies
Gabon
Gambia, The 1
German Dem. Rep. 4
Germany, Fed. Rep.
Ghana 1
Greece
Grenada 1
Guinea
Guyana 1
Hungary
Korea, Dem. People’s
Rep.
Kuwait
Laos
Latvia
Lebanon
Lesotho
Liberia
Libya
Liechtenstein
Luxembourg
Madagascar
Malawi
Malaysia
Mali
Malta 1
Mauritania
Mauritius 1
Mexico
Mongolia
Morocco
Nauru
Nepal
Netherlands 5
New Zealand
Niger
Nigeria
Norway
Oman
Pakistan 3
Papua New Guinea
Paraguay
Philippines
Poland
Portugal
Romania
Rwanda
St. Lucia 1
Saudi Arabia
Senegal
Seychelles 1
H-22
Sierra Leone
Singapore
Solomon Is. 1
South Africa 6
Spain
Sri Lanka
Sudan
Suriname 1
Swaziland 1
Sweden
Switzerland
Syrian Arab Rep.
Tanzania
Tonga
Trinidad & Tobago 1
Tunisia
Turkey
Tuvalu 1
Uganda
Union of Soviet Socialist
Reps.
United Kingdom 7
United States 3
Upper Volta
Uruguay
Venezuela
Viet-Nam, Rep 8.
Western Samoa
Yemen (Aden) 1
Yugoslavia
Zaire
Zambia
Zimbabwe 1
NOTES:
1 See under country heading in the bilateral section for
information concerning acceptance of treaty obligations.
2 Extended to Norfolk Island.
3 With reservation.
4 Applicable to Land Berlin.
5 Extended to Curacao.
6 Extended to Namibia.
7 Extended to Ascension Islands, Bermuda, British Virgin
Islands, Brunei, Caicos, Cayman Islands, Channel Islands,
Falkland Islands and dependencies, Gibraltar, Hong Kong,
Isle of Man, Montserrat, St. Christopher-Nevis, St. Helena,
and Turks. Also extended to Belize; continued application
not yet determined.
8 See footnote 4 under AGRICULTURE: agreement of
January 25, 1924 (26 UST 1840; TIAS 8141: 57 LNTS
135).
Approval of increases in liability limitations of Warsaw
Convention and Hague Protocol. The following is the
order of the Civil Aeronautics Board adopted May 13, 1966
approving increases in liability limitations of Warsaw
Convention and Hague Protocol:
The Convention for the Unification of
Certain Rules Relating to International
Transportation by Air, generally known as
the Warsaw Convention, creates a uniform
body of law with respect to the rights and
responsibilities of passengers, shippers, and
air Carriers in international air transportation.
H-23
The United States became a party to the
Convention in 1934, and eventually over 90
countries likewise became parties to the
Convention.”
The Convention was amended by the Protocol signed at
Hague in 1955 which has never been ratified by the
United States. The Convention (subject to certain
provisions) limits carriers’ liability for death or injury to
passengers in international transportation to 125,000 gold
francs, or approximately $8,300. The Protocol, subject to
certain provisions, provides for liability limitations of
approximately $16,600.
H-24
APPENDIX I
APPENDIX I
MGM GRAND AIR, INC.
1500 Rosecrans Avenue
Suite 350
Manhattan Beach, California 90266
SINGLE ENTITY CHARTER FLIGHT CONTRACT
NO.: 93-055 (herein referred to as “Contract”)
AGREEMENT made as of August 27, 1993 between MGM
GRAND AIR, INC. with its principal office at 1500
Rosecrans Ave., Suite 350, Manhattan Beach, CA 90266,
(herein referred to as “MGM GRAND AIR”) and MUSIC
GUIDE, INC. with its principal office at 1775 Broadway -
7th Floor, New York NY 10019 (herein referred to as
“Charterer”).
WHEREAS, the Charterer has requested MGM GRAND
AIR to provide aircraft on charter hereinafter described for
the purpose of performing Single Entity Charters; and
WHEREAS, MGM GRAND AIR and Charterer are willing
and intend to comply with the applicable provisions of the
charter regulations of the United States Department of
Transportation (hereinafter “DOT”) and other applicable
MGM GRAND AIR
CHARTERER
I-]
governmental regulations; and
WHEREAS, MGM GRAND AIR has agreed to provide said
sércraft upon the terms and conditions appearing hereinafter;
NOW IT IS HEREBY AGREED by and between the parties
hereto, for and in consideration of the mutual promises and
covenants hereinafter made, as follows:
ARTICLE 1: CHARTERED AIRCRAFT
1.1 MGM GRAND AIR shall provide aircraft (hereinafter
“Chartered Aircraft” or “Aircraft”) as specified in the Single
Entity Charter Agreement Schedule(s) hereinafter
“Schedule(s)”) attached hereto and made a part hereof. Such
aircraft shall have characteristics as specified in that
Schedule(s).
1.2 In the event MGM GRAND AIR deems it impossible
to provide the Charterer with the Chartered Aircraft due to
adverse meteorological conditions or operational or
mechanical reasons, MGM GRAND AIR may without
notice and without liability undertake, at its option, to:
(a) Accommodate the passengers and baggage on
available scheduled or charter service to the extent not
inconsistent with the laws or regulations of the United
States; or
(b) Substitute aircraft of another type or of another
carrier or carriers fit for equivalent transportation; provided,
MGM GRAND AIR
CHARTERER
I-2
however, in no event shall the charges be higher than the
applicable charges for the Aircraft originally chartered.
1.3 The Chartered Aircraft shall at all times be under the
exclusive command and control of the Captain of the
Aircraft. The Captain shall have complete discretion with
regard to matters relating to the safe and legal operation of
the aircraft including issues concerning the load carried, its
distribution, the route to be flown, the time of departure
from original point and the intermediate point(s), when and
if the flight shall be undertaken and where landings shall be
made. The Charterer and all passengers shall accept all such
decisions as final and shall strictly comply with all orders
issued by the Captain.
ARTICLE 2: REPRESENTATION OF CHARTERER AS
TO SINGLE ENTITY NATURE OF CHARTER
Charterer hereby represents to MGM GRAND AIR that
Charterer is paying the entire charter price for the
transportation contracted for hereunder and that none of the
passengers is paying, or will pay, directly or indirectly, any
part of the charter price. Charterer hereby agrees to
indemnify and hold MGM GRAND AIR harmless in event
this representation and warranty is not adhered to.
ARTICLE 3: UNUSED CAPACITY
MGM GRAND AIR
_—_—
CHARTERER
[-3
To the extent not inconsistent with any governmental
regulation or order, any space in the Chartered Aircraft
chartered by Charterer and not utilized by the Charterer or
Charterers’ passengers may be utilized by MGM GRAND
AIR for the carriage of mail, cargo and/or MGM GRAND
AIR personnel and property connected with the tour, without
diminution of the charter price agreed to herein.
ARTICLE 4: TIMETABLE AND FLIGHT ROUTE
4.1 The timetable and flight route of the charter flight(s)
set forth in the Schedule(s) or any travel documents or
correspondence between MGM GRAND AIR and Charterer
are approximate and shall not be guaranteed by MGM
GRAND AIR. Carrier shall make every reasonable effort
to perform as Charter’s schedule requires. Departure times
are subject to and may be altered by aircraft availability and
routing, the availability of airport gate space, weather
conditions, and other operational factors.
4.2 If MGM GRAND AIR determines that landing
facilities at any point on the charter flight itinerary are, in its
opinion, not adequate or safe for landing purposes, or if
landing is prohibited or restricted by law, regulations,
adverse weather or operating conditions, MGM GRAND
AIR may substitute in place thereof an alternate airport at
which, in MGM GRAND AIR’s sole judgment, adequate
and safe facilities are available and landing may be
accomplished. In this event, MGM GRAND AIR will
arrange, at its own expense, for the transportation of the
MGM GRAND AIR
CHARTERER
1-4
charter passengers to the originally scheduled point of
destination of the charter flight, and MGM GRAND AIR
shall thereby be deemed to have fulfilled its obligations
under this Agreement.
ARTICLE 5: DELAYS AND DEVIATION FROM
FLIGHT ROUTE
5.1 Each party to this Agreement agrees to use its best
efforts to cause on-time departure of all charter flights
operated in accordance with the Schedule(s) hereto. The
Charterer shall make all necessary arrangements to ensure
the arrival of passengers and availability of baggage for
embarking and loading thirty (30) minutes prior to the
departure times indicated on the Schedule(s) hereto. MGM
GRAND AIR shall be under no obligation to delay departure
unless so requested by the Charterer of any aircraft
operating any sector of a charter flight in the event of non-
arrival or late arrival of passengers or baggage or other acts
Or omissions of the Charterer, its employees, agents or
passengers, and in no event shall MGM GRAND AIR be
liable to the Charterer or any other individual for the
transportation of any passenger who is not at the specified
check-in point at least thirty (30) minutes prior to the
scheduled departure of the charter flight. In the event the
Charterer requests a delay in any departure and MGM
GRAND AIR agrees thereto, the Charterer shall pay to
MGM GRAND AIR all additional charges, costs and
expenses incurred by MGM GRAND AIR in connection
with such delay.
MGM GRAND AIR
___
CHARTERER
I-5
5.2 Any deviations from the flight schedule requested by
the Charterer and agreed to by MGM GRAND AIR or
necessitated by Charterer’s actions or failure to act may
entail alterations in the charter price.
ARTICLE 6. CHARTER PRICE AND TERMS OF
PAYMENT
6.1 The Charterer shall pay MGM GRAND AIR for the
services to be provided under this Agreement the charter
price agreed to in the Schedule(s), in the manner and within
the time provided therein. Any additional government taxes
or charges, including departure taxes and user fees,
including, but not limited to, Customs, INS, and APHIS
fees, levied against MGM GRAND AIR which are not
included in the Schedule(s) hereto will be submitted to
Charterer for payment not later than thirty (30) days after
completion of the charter flight and shall be paid by
Charterer within thirty (30) days of the invoice date.
6.2 Unless otherwise provided in this Agreement, the
charter price set forth in the Schedule(s) includes the costs
of the aircraft with crew, fuel, oil, maintenance, appropriate
meals in flight as approved by Charterer, landing fees,
parking fees, ground service and dispatch costs for the
aircraft. All other costs, including, but not limited to, costs
for ground transportation at the place of departure and
destination, costs of visa, customs duties and other taxes and
fees, including the U.S. International Departure Tax,
MGM GRAND AIR
CHARTERER
I-6
security charges and other so-called departure and “Head
Taxes, payable in connection with the passengers or baggage
transported hereunder are not included in the charter price
unless otherwise specifically indicated in the Schedule(s)
hereto.
6.3 All payments are to be made in U.S. Dollars. If
Charterer pays by wire transfer, the wire transfers shall be
received by MGM GRAND AIR in currently available funds
no later than the payment due date(s) set forth on the
Schedule(s) in order to be considered timely. Charterer and
MGM GRAND AIR agree that time is of the essence in
payment by Charterer and receipt by MGM GRAND AIR of
any and all amounts due hereunder.
6.4 Notwithstanding paragraphs 1, 2, and 3 of this
Article, MGM GRAND AIR reserves the right to increase
the charter price for any reason whatsoever, including, but
not limited, an increase in the cost of fuel to MGM GRAND
AIR upon not less than sixty (60) days’ written notice to the
Charterer. Cancellation by the Charterer of this Agreement
within seven (7) days of notification by MGM GRAND AIR
of an increase of more than 10% in the charter price shall be
without penalty and without payment of any cancellation
charges as provided in Article 9 of this Agreement.
6.5 Charterer shall not pledge the aircraft or the credit of
MGM GRAND AIR for any purpose. The individual
passengers shall not have the right to claim any refund of the
MGM GRAND AIR
_
CHARTERER
I-7
charter price or portions thereof from MGM GRAND AIR.
ARTICLE 7: TARIFFS, GOVERNMENTAL LAWS,
REGULATIONS AND APPROVALS
7.1 MGM GRAND AIR’s obligations to perform the
contracted transportation shall be contingent upon and
subject to the timely issuance of such approvals, clearances,
permits or operating authority as may be required to be
issued or granted by any government or governmental
agency for the operation of the charter flights provided for
herein, including, without limitations, such landing, transit,
overflight and uplift rights as may be necessary from any
foreign government(s) and instrumentalities thereof. MGM
GRAND AIR will use its best efforts to obtain such
approvals, clearances, permits or operating authority. In the
event that any government or governmental agency shall fail
or refuse to issue or grant the approvals, clearance, permits
or operating authority referred to herein sufficiently in
advance of scheduled departure to make required flight
arrangements or shall, after issuance, revoke or rescind the
same, or should MGM GRAND AIR be unable to perform
or complete any flight due to any cause either described in
Article 13.3 or beyond its control, MGM GRAND AIR may
elect to terminate this contract without liability for penalties
or damages. Upon such termination by MGM GRAND
AIR, MGM GRAND AIR shall refund all sums received by
it on account of the charter price, excepting only that
portions thereof attributable to transportation theretofore
MGM GRAND AIR
CHARTERER
I-8
performed and such transportation as may be necessary to
return charter flight passengers to their original airports.
7.2 The Charterer shall comply and shall insure the
compliance by passengers with all treaties, customs, police,
public health, and other regulations, including the
immigration and customs laws of each country or state from,
through, or to which a charter flight is operated pursuant to
this Agreement. Charterer further agrees to indemnify and
hold MGM GRAND AIR harmless against, and shall pay
any loss, damage or expense suffered or incurred by MGM
GRAND AIR by reason of any such passenger’s or
passengers’, or Charterer’s, failure to comply with any said
regulation or law. MGM GRAND AIR shall not be liable
for any passenger in connection with obtaining necessary
documents or complying with the laws, regulations, orders,
demands or travel requirements of any country or state,
whether given in writing or otherwise or for the
consequences to Charterer or any passenger resulting from
failure to obtain such documents or to comply with such
laws, ett. MGM GRAND AIR reserves the right to refuse
carriage to Charterer or any passenger whose documents are
not complete or who has not complied with the applicable
laws, regulations, orders, demands or travel requirements,
and MGM GRAND AIR shall not be liable for loss or
expense due to failure to comply with the regulations listed
in this paragraph. |
7.3 Passports, visas, vaccination certificates and all other
MGM GRAND AIR
-_
CHARTERER
1-9
eee - —e
required documents are the responsibility of the individual
passenger.
7.4 Passengers are subject to search of their person and
search or inspection of their property, including checked
baggage, in accordance with security screening procedures,
which can include an electronic detector with or without the
passengers’ consent or knowledge, to ensure the safety and
security of the flight. Any person who does not consent to
a search of his person or any property of any person who
does not consent to a search or inspection of such property,
may be refused transportation by MGM GRAND AIR, and
MGM GRAND AIR will have no liability whatsoever to
Charterer or the passenger or passengers involved.
ARTICLE 8: CANCELLATION BY MGM GRAND AIR
8.1 MGM GRAND AIR may cancel this Agreement or
any affected portion thereof, by written notice, or in case the
charter flight has commenced, terminate the charter flight
immediately without special warning or formal notice being
given to the Charterer and without liability of any kind to
the Charterer, passengers and any other persons having an
interest in the charter flight, in the event:
(a) That any material representation in this
Agreement by the Charterer is false or any material
provisions of this Agreement is violated by the Charterer or
by any passenger;
MGM GRAND AIR
CHARTERER
I-10
(b) That the Charterer fails to pay the amounts due
on the dates and in the manner set forth in the Schedule(s)
hereto;
(c) That the Charterer commits any violation of any
currently effective governmental rules and regulations or is
ineligible for charter transportation under the provisions of
any applicable tariffs or regulations or laws of DOT or any
other applicable U.S. or foreign governmental agency;
(d) That the Charterer goes bankrupt or goes into
liquidation or commits an act of bankruptcy or enters into
any agreement with its creditors prior to full payment of the
charter price to MGM GRAND AIR: or
(e) Of refusal or delayed granting of governmental
authorization or permits required for the performance of any
flight, journey or service contemplated hereby, mechanical
difficulties, fuels shortages, damages to the Aircraft, adverse
weather conditions, unsafe landing conditions, an act of
God, Force Majeure, seizure or hijacking, quarantine
restrictions, fire, flood, civil commotions, strikes or labor
stoppages, war, hazards incident to a state of war, Or any
other cause whatsoever reasonably beyond the control of
MGM GRAND AIR.
8.2 In the event of cancellation pursuant to paragraphs
l(a) through (d) of this Article, MGM GRAND AIR may
collect and/or retain as liquidated damages a cancellation
charge calculated in accordance with Article 9 of this
Agreement.
MGM GRAND AIR
-_
CHARTERER
I-11]
8.3 In the event of termination after the commencement of
a charter flight pursuant to paragraph 2 of this Article,
MGM GRAND AIR may collect as liquidated damages the
greater of (a) the entire balance due under this Agreement
for the remaining charter flights.
8.4 The Charterer shall indemnify and hold MGM
GRAND AIR harmless from claims by passengers or other
persons having any interest in the canceled or terminated
charter flight arising out of or in connection with such
cancellation or termination.
8.5 The date of cancellation shall be the date on which
MGM GRAND AIR notifies the Charterer that it is
canceling this Charter Agreement or part thereof pursuant to
Article 15 hereof.
ARTICLE 9: CANCELLATION BY CHARTERER
9.1 The Charterer may, by giving written notice pursuant
to Article 15 hereof, effective upon its receipt by MGM
GRAND AIR, cancel this Agreement. In such event, the
Charterer shall pay to MGM GRAND AIR the following
amounts as liquidated damages and not as a penalty:
(a) Five percent (5%) of the total charges when
notice of cancellation is received by MGM GRAND AIR
ninety (90) days or more before the scheduled departure date
of the charter flight;
MGM GRAND AIR
CHARTERER
I-12
(b) Ten percent (10%) of the total charges if notice
is received by MGM GRAND AIR sixty (60) days but less
than ninety (90) days or more before the scheduled departure
date of the charter flight;
(c) Fifteen percent (15%) of the total charges if
notice is received by MGM GRAND AIR thirty (30) days
but less than sixty (60) days before the scheduled departure
date of the charter flight;
(d) Twenty five percent (25%) of the total charges
if notice is received by MGM GRAND AIR fifteen (15) days
but less than thirty (30) days before the scheduled departure
date of the charter flight;
(e) Thirty five (35%) of the total charges if notice is
received by MGM GRAND AIR less than fifteen (15) days
before the scheduled departure date of the charter flight.
ARTICLE 10: ASSIGNMENT OF RIGHTS AND
OBLIGATIONS
MGM GRAND AIR shall not, without the consent of
Charterer which shall not be unreasonably withheld,
subcontract the performance of any of its obligations
hereunder except where prohibited by governmental
regulation. The Charterer shall not assign its rights or
obligations under this Agreement without the express written
consent of MGM GRAND AIR, which shall not be
unreasonably withheld.
ARTICLE 11: PASSENGER BOARDING
MGM GRAND AIR
_
CHARTERER
I-13
11.1 MGM GRAND AIR will accommodate only
passengers so designated by the Charterer and included on
the flight manifest. No refunds of charter price will be
made for passengers who do not board the flight.
11.2 MGM GRAND AIR shall have the right to refuse
boarding to any person: (a) who appears to be intoxicated
or under the influence of any illicit or “controlled substance”
drug; (b) who refuses to be subject to any reasonable checks
of his person or baggage deemed by MGM GRAND AIR or
responsible airport authorities as in the best interests of the
security of the flight; (c) whose condition would involve
hazard or risk to himself or others.
11.3 It shall be the sole responsibility of the Charterer to
inform charter passengers of the foregoing conditions of
transportation. Any notice by MGM GRAND AIR to
passengers is a matter of courtesy and shall not relieve
Charterer from its obligations hereunder to inform charter
passengers.
ARTICLE 12: BAGGAGE LIABILITY LIMITS
12.1 Domestic U.S. only: MGM GRAND AIR’s liability
for loss or damage to, or delay in delivery of, any personal
property, including checked baggage, delivered into the
custody of MGM GRAND AIR shall not exceed the actual
value of the property up to a maximum of $1,250 for each
MGM GRAND AIR
CHARTERER
I-14
passenger, not per baggage piece.
12.2 International only: MGM GRAND AIR’s liability
for loss of, damage to, or delay in the delivery of any
personal property, including checked baggage, delivered
into the custody of MGM GRAND AIR is limited to the
lesser of: (a) the actual value of such property lost,
damaged, or delayed in delivery, or (b) $20 per kilogram
($9.07 per pound), unless at the time of presenting such
property for transportation a higher value is declared and an
additional transportation charge at the rate of $.10 for each
$100 or fraction thereof is paid over the $20 per kilogram.
In the event a higher value is declared and an additional sum
is paid, MGM GRAND AIR’s liability shall be limited to
such higher declared value.
12.3 MGM GRAND AIR will not be liable for damage to
baggage which, because of the construction of such baggage
(viz., soft pack - type baggage constructed of cloth, canvas,
plastic or combinations thereof), would not withstand
normal aircraft baggage handling procedures. Such baggage
will be accepted for carriage at the sole risk of the
passenger.
12.4 MGM GRAND AIR is not liable for loss or damage
to or delay in the delivery of fragile, perishable articles,
money, jewelry, silverware, negotiable papers, securities or
other valuables, business documents or business/trade
samples which are included in the passenger’s checked
MGM GRAND AIR
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baggage in excess of the liability limits set forth in
paragraph 1 of this Article.
12.5 MGM GRAND AIR shall be liable for checked
baggage only when in MGM GRAND AIR’s custody from
airport to airport. Delivery of checked baggage will be
made only to passenger(s) included on the flight manifest
and upon presentation of personal identification. MGM
GRAND AIR shall not be liable for any item of baggage or
personal property if such item has not been checked into the
care and custody of MGM GRAND AIR.
12.6 Any article of personal property carried aboard an
aircraft by a passenger will be accepted at the sole risk of
such passengers and shall be deemed to be in the passenger’s
care and custody even though MGM GRAND AIR’s
personnel may place such items in temporary storage either
in overhead storage racks or other storage facilities in
compliance with applicable safety regulations or for the
comfort or convenience of the passengers.
12.7 No action shall be maintained for any loss, or any
damage to, or any delay in the delivery of, any property or
baggage, or in any other claims (other than personal injury
or death), arising out of or in connection with the contracted
transportation unless: (a) such action is commenced within
2 years after such alleged occurrences and (b) notice of the
claim shall have been presented in writing to an office of
MGM GRAND AIR within 21 days after the alleged
MGM GRAND AIR
CHARTERER
I-16
occurrence of the events giving rise to the claim, except that
when international transportation is involved, notice of a
claim respecting damages to baggage shall have been given
within 7 days from the date of receipt, and, with respect to
delay of baggage, notice shall have been given within 21
days from the date on which the baggage was placed at
passenger’s disposal. However, failure to give the above
notice shall not be a bar if a claimant establishes to the
satisfaction of MGM GRAND AIR that he or she was
unable to give such notice. All claims shall be subject to
proof of amount of loss.
12.8 MGM GRAND AIR has the right to refuse to accept
animals for carriage on board the Aircraft. Carriage of
animals may be subject to an appropriate charge therefor.
12.9 It shall be the sole responsibility of Charterer to
inform charter passengers in writing of the conditions of
transportation applicable to international transportation,
pursuant to paragraph 2 of this Article, and Charterer hereby
agrees to indemnify and hold MGM GRAND AIR harmless
from any and all claims brought by passengers against MGM
GRAND AIR when Charterer failed to inform said
Passengers in writing of said conditions of transportation.
ARTICLE 13: LIABILITY OF MGM GRAND AIR
13.1 This Agreement is for air services only, and MGM
GRAND AIR’s responsibility is limited solely to providing
MGM GRAND AIR
SE
CHARTERER
I-17
the Aircraft properly manned, equipped and fueled. All
other passenger services, if any, are the responsibility of
Charterer.
13.2 The carriage of passengers and baggage pursuant to
this Agreement is subject to the rules and limitations relating
to liability established by the Warsaw Convention unless
such carriage is not international carriage as defined by that
Convention, and, if applicable, the Agreement Relating to
Liability Limitations of the Warsaw Convention and the
Hague Protocol, Agreement CAB 18900, effective 16 May
1966. “Warsaw Convention” means the Convention for the
Unification of Certain Rules Relating to International
Transportation by Air signed at Warsaw, Poland, 12
October 1929, or the Warsaw Convention as amended at
The Hague, 28 September 1955, and the provisions
regarding liability in the “Montreal Agreement,” whichever
may be applicable.
13.3 MGM GRAND AIR shall not be liable for any
cancellation, delay, interruption or prevention of completion
of the contracted transportation or its failure to perform any
act required pursuant to this Agreement arising from any of
the following: laws, regulations, requirements, acts,
demands, orders, interpositions or interferences of any
government or governmental authority, Force Majeure, Acts
of God, sanction (financial or otherwise), seizure under legal
process, hijacking, riots, civil commotions, strikes or labor
stoppage (whether resulting from disputes between MGM
MGM GRAND AIR
CHARTERER
I-18
GRAND AIR and its employees or between other parties),
fire, fog, smog, flood, weather, inability to obtain fuel,
inability to obtain fuel at a cost that, in MGM GRAND
AIR’s sole judgment, is not prohibitive (however, MGM
GRAND AIR, shall give Charterer the option to pay the
excess fuel cost), quarantines, requisition of the aircraft,
military emergency, war, rebellion, insurrections, hostilities
or hazards or dangers incident thereto, damage or accident
to or failure, mechanical difficulties or breakdown of the
Aircraft or any part thereof of any machinery or apparatus
in connection therewith, failure or refusal by any
governmental authority to issue approvals, Clearances,
permits, operating, layover or traffic rights or recision or
revocation thereof, or any other cause whatsoever which are
beyond the control of MGM GRAND AIR. In no case shall
MGM GRAND AIR be liable for any consequential or
special damages arising from its performance or failure to
perform the contracted transportation or any of its
obligations hereunder whether or not MGM GRAND AIR
has or should have knowledge that such damage might be
sustained.
13.4 MGM GRAND AIR shall have no responsibility or
liability for any loss, damage or delay occasioned by the acts
of employees of any subcontractor of MGM GRAND AIR
or employees of any airport or airport facility where the
Chartered Aircraft may land or take off.
MGM GRAND AIR
Ss
CHARTERER
I-19
13.5 The Charterer agrees to indemnify MGM GRAND
AIR against all claims and expenses including legal costs in
respect of any liability to third persons, including, but not
limited to, passengers, for any damage whatsoever arising
out of or in connection with any act or omission of the
Charterer, its servants or agents.
ARTICLE 14: APPLICABLE LAW
14.1 This Agreement, regardless of where executed, shall
be construed in accordance with the laws of the State of
California.
14.2 All actions or suits shall be brought exclusively in
courts of competent jurisdiction within the State of
California. Charterer agrees to submit itself to the
jurisdiction of courts of competent jurisdiction within the
State of California and consents hereby to accept service of
process by any of the means of delivering notice under
Article 15 hereof.
14.3. The illegality or non-validity of any paragraph,
clause or provision contained or referred to in this
Agreement shall not affect or invalidate any other paragraph
or provision hereof.
14.4 MGM GRAND AIR and Charterer acknowledge that
they have negotiated concerning the terms of this Article and
agree that these terms constitute an essential, bargained for
MGM GRAND AIR
CHARTERER
) 1-20
Ti icreeieeeenenmneinieiiatinaeiniiinmaaiaiiiiie
condition of this Agreement.
ARTICLE 15: NOTICES
15.1 All notices and other communications under this
Agreement (unless otherwise expressly contemplated herein)
Shall be in writing and in English and either delivered by
hand or sent by facsimile or registered mail in each case to
the following address or facsimile number of the intended
recipient:
To MGM GRAND AIR:
MGM Grand Air, Inc.
Suite 350
1500 Rosecrans Avenue
Manhattan Beach, California 90266
Attention: Robert L. Gould, President
Facsimile: (310) 643-1960 or 643-1950
With a copy to:
MGM Grand, Inc.,
3155 West Harmon
MGM GRAND AIR
_
CHARTERER
I-21
2 LRN Np LE WAND Sh AAT AN
RUE SERRE VL CIRO & =e
Las Vegas, Nevada 89103
Attention: Executive Vice President & General Counsel
Facsimile: (702) 891-1114
To Charterer:
Music Guide, Inc.
c/o Padell, Nadell & Company
1775 Broadway - 7th floor
New York NY 10019
Attention: Shari Goldschmidt
Facsimile: (212) 262-2769
15.2 Such notice shall be considered served and received:
(a) in the case of delivery by hand, upon delivery or upon
refusal on presentation; (b) in the case of telex, upon
sending providing the correct answer back is received; (c) in
the case of facsimile, upon receipt of the facsimile
confirmation conforming that the facsimile has been
successfully transmitted provided the addressee does not
within 24 hours notify the sender that it has been transmitted
illegibly or incorrectly, and provided that the facsimile was
not received by the addressee after 1700 hours local time of
the addressee, in which event the facsimile will be deemed
to be served and received on the next business day of the
addressee; and (d) in the case of registered mail, upon
MGM GRAND AIR
CHARTERER
I-22
receipt by addressee being advised to the sender.
ARTICLE 16: CANCELLATION OF CHARTER FLIGHT
DUE TO FUEL SHORTAGE
16.1 The performance by MGM GRAND AIR of this
Agreement shall be subject to the availability, at the time
each outbound flight is scheduled to operate, of sufficient
aviation fuel at MGM GRAND AIR’s usual fueling points,
pursuant to existing contracts with its regular suppliers, to
complete all segments of such charter and any positioning
flights related thereto. Any flight cancellations made on
short notice necessitated by an energy crisis will be made in
accordance with the provisions of Section 404 of the Federal
Aviation Act of 1958, as amended, based on the following
Criteria:
(a) the chronological order in which charter
agreements were executed;
(b) the availability of alternate dates for each charter
program;
(c) the effect of cancellation of a particular flight on
other flights;
(d) the extent to which ferry operations will be
required;
(e) the length of haul and/or back haul;
(f) the size of the charter group; and
(g) the type of equipment required.
MGM GRAND AIR
—
CHARTERER
I-23
16.2 In the event that MGM GRAND AIR cancels any
flight less than sixty (60) days before its scheduled date of
departure as a result of the unavailability of sufficient fuel,
but has not canceled every other flight (i) contracted for
after the date of the contract concerning the canceled flight,
(ii) to be operated from the same point of origin as the
canceled flight, and (iii) scheduled to depart within seventy-
two (72) hours of the canceled flight, MGM GRAND AIR
will provide a written, detailed explanation of the facts,
which by application of the criteria listed above provide the
grounds for such cancellation.
16.3 In the event that any flight is canceled in accordance
with this provision, MGM GRAND AIR will promptly
refund all charter price payments applicable to such flight
made to it by Charterer, but shall not otherwise be liable for
any claim against MGM GRAND AIR, its officers,
directors, employees, or agents arising out of or in
connection with such cancellation, whether or not such
cancellation is due to any negligence " it, either of
commission or omission.
16.4 The limited right of cancellation reserved to MGM
GRAND AIR hereunder shall be in addition to and not in
place or derogation of any and all other rights which MGM
GRAND AIR may otherwise have, in law or equity, or
under the Force Majeure or any other article of this
Agreement to assert the unavailability of fuel as an excuse
for its non-performance.
MGM GRAND AIR
CHARTERER
1-24
ARTICLE 17: HEADINGS
The headings herein are for the purpose of reference only
and shall not limit or otherwise affect any of the terms or
provisions herein.
ARTICLE 18: OTHER AGREEMENTS
18.1 It is understood and agreed that this Agreement
contains the entire agreement of the parties with respect to
the subject matter hereof; and the parties hereto agree that
no party shall be bound by any provision or understanding
which is not incorporated herein.
18.2 No terms or provisions of this Agreement may be
changed except by written instrument signed by both parties
hereto.
ARTICLE 19: MISCELLANEOUS
Unless otherwise agreed to herein, MGM GRAND AIR
reserves the right to utilize its designated public relations
firm(s) regarding the movement of this charter.
MGM GRAND AIR
_
CHARTERER
I-25
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement on the date indicated below.
MGM GRAND AIR, INC.
BY:
TITLE: Vice President, Finance and CAO
DATE:
CHARTERER
BY:
TITLE:
DATE:
MGM GRAND AIR
CHARTERER
1-26
SINGLE ENTITY
CHARTER AGREEMENT SCHEDULE A
Charter Flight Contract Number 93-055 SE
Aircraft Type DC-8
No. of Passengers 62
Charterer Music Guide, Inc.
Flight Number 1 Flight Number 2
Origination N/A Origination N/A
Destination Destination
Date of Departure Date of Departure
Time of Departure Time of Departure
Flight Number 3 Flight Number 4
Origination N/A Origination N/A
Destination Destination
Date of Departure Date of Departure
Time of Departure Time of Departure
Special Conditions: See Attachment “B:” for Flight Schedule
All wire transfer deposits and payments due hereunder shall
be made in U.S. dollars by Charterer to MGM Grand Air’s
MGM GRAND AIR
Se
CHARTERER
I-27
account number 06413-00590. BA #121000358 at Bank of
America, El Segundo Branch #0641, 835 N. Sepulveda
Blvd., El Segundo, CA 90245, phone number (310) 568-
8075. Facsimile number (310) 322-6647 or to such other
account at such other bank as MGM Grand Air may
hereafter designate.
CHARTER PRICE: Transportation Charges $395,000.00
Transportation Tax
Other Charges
Total Charter Price $395,000.00
Deposit Due September 7, 1993 $ 40,000.00
Balance $355,000.00
Payment Due October 15, 1993 $355,000.00
Payment Due
MGM GRAND AIR, INC.
By:
Title: Vice President of Finance and CAO
Date:
CHARTERER
MGM GRAND AIR
CHARTERER
I-28
ATTACHMENT “B”
Contract Number: 93-055
Charterer: Music Guide, Inc.
October 24, 1993 Montreal (YXM)/San Juan
4:00 p.m.
October 27, 1993 San Juan (SJU)/Buenos Aires (EZE)
4:00 p.m.
October 31, 1993 Buenos Aires (EZE)/Rio do-Aeciro (RIO)
4:00 p.m.
November 3, 1993 Rio de-Janeiro (RIO)/Saul Paulo
1:00 p.m.
November 3, 1993 San Paulo (SAO)/Rio de Janeiro (RIO)
11:30 p.m.
November 7, 1993 Rio de Janeiro (RIO)/Acapulco (ACA)
2:00 p.m.
November 10, 1993 Acapulco (ACA)/Mexico City (MEX)
1:00 p.m.
November 10, 1993 Mexico City (MEX)/Acapulco (ACA)
11:00 p.m.
November 12, 1993 Acapulco (ACA/Mexico City (MEX)
1:00 p.m.
November 14, 1993 Mexico City (MEX)/Los Angeles
(LAX) 4:00 p.m.
MGM GRAND AIR
TT
CHARTERER
]-29
Pe A ep ee ee Ee ee ee eT ae
DECLARATION OF JOHN R. SEVERSON
I John R. Severson, declare as follows:
1. At all times relevant hereto, I was the Vice
President of Finance and Chief Administrative Officer of
MGM GRAND AIR, INC. and I have personal knowledge
of the facts and circumstances stated herein.
2. I negotiated the contract between MGM GRAND
AIR, INC. and Music Guide, Inc. dated August 27, 1993 for
air transportation for the Madonna “Girlie Show” tour.
3. A true and correct copy of that contract is
attached hereto as Exhibit “A”.
4. Acopy of that contract was delivered to Music
Guide, Inc., the charterer of the aircraft.
5. Under the terms c* the contract, it was
specifically agreed that the Warsaw Convention would apply
to the transportation rendered by MGM GRAND AIR, INC.
6. Music Guide, Inc. had complete control over who
would be passengers on the aircraft and had the right to
change the designated passengers throughout the duration of
the contract.
7. MGM GRAND AIR, INC., had only the right to
refuse to accept passengers who were dangerous or who
posed a threat to themselves or others.
8. MGM GRAND AIR, INC. expected that Music
Guide, Inc. would advise each of the passengers whom it
designated that the Warsaw Convention was applicable to
the transportation.
MGM GRAND AIR
CHARTERER
I-30
I declare under penalty of perjury that the foregoing
is true and correct.
Executed this 12th day of May 1995 at Manhattan
Beach, California
John R. Severson, declarant
MGM GRAND AIR
CHARTERER
I-31]
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.