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

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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

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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

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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

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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.

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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:

H-20

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.

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