Amicus Curiae Brief — American Airlines, Inc. v. Cruz

MOTION FILED

APR 2 4 2000

(3)

No. 99-1565

IN THE

Supreme Court of the Gnited States

AMERICAN AIRLINES, INC.,

Petitioner,

MARIA V. CRUZ, ET AL.,

Respondents.

On Petition for a Writ Of Certiorari

To The United States Court of Appeals

for the District of Columbia Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE AND BRIEF OF THE AIR TRANSPORT

ASSOCIATION OF AMERICA

IN SUPPORT OF THE PETITIONER

Of Counsel:

ROBERT P. WARREN

DAVID A. BERG

HEATHER L. MILLER

AIR TRANSPORT ASSOCIATION

OF AMERICA

1301 Pennsylvania Ave., N.W.

WILLIAM F. SHEEHAN

(Counsel of Record)

FREDERICK C. SCHAFRICK

JEFFREY M. KLEIN

SHEA & GARDNER

1800 Massachusetts Ave., N.W.

Washington, D.C. 20036

Suite 1100 (202) 828-2000

Washington, D.C. 20004-1707

(202) 626-4000 Counsel for Amicus Curiae

April 24, 2000

IN THE

Supreme Court of the United States

No. 99-1565

AMERICAN AIRLINES, INC.,

Petitioner,

Vv.

MARIA V. CRUZ, ET AL.,

Respondents.

On Petition for a Writ Of Certiorari

To The United States Court of Appeals

for the District of Columbia Circuit

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE OF THE AIR TRANSPORT

ASSOCIATION OF AMERICA

IN SUPPORT OF THE PETITIONER

The Air Transport Association of America (“ATA”), having

been unable to secure the consent of the respondents, respectfully

moves the Court under Sup. Ct. R..37.2(b) for leave to file the

attached brief amicus curiae in support of the petition for a writ

of certiorari in this case.

om

The ATA is an association of all major domestic air carriers

and five foreign air carriers.' Its principal purpose is to support its

members by promoting airline safety and advocating common

industry positions. Since its inception in 1936, the ATA has been

deeply involved in the development of international law governing

international air transportation. It has filed briefs amicus curiae

in, among other cases, E/ Al Israel Airlines, Ltd. v. Tseng, 525

U.S. 155 (1999), and Trans World Airlines, Inc. v. Franklin Mint

Corp., 466 U.S. 243 (1984), both involving the construction of the

Warsaw Convention.

The decision below causes grave concern to the ATA’s

members. It overturns decades of established industry practice

approved by the Executive Branch, and exposes the airlines to

extensive litigation and vast liabilities — all in pursuit of a

supposed requirement that the court of appeals itself

acknowledged “makes little real sense” and has “no apparent

purpose.” Pet. App. 7a. If allowed to stand, the decision will

senselessly harm the airlines and raise the cost of air travel for

their passengers.

Furthermore, ATA members engaging in foreign air commerce

rely on the uniform system of liability rules established by the

Warsaw Convention. The conflicting decisions of the lower

courts regarding their liability disrupts this reliance and defeats

“the Warsaw Convention’s stated purpose of achieving uniformity

of rules governing claims arising from international air

transportation.” Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 552

(1991). ;

' The ATA's 23 U.S. members are Airborne Express, Alaska Airlines,

Aloha Airlines, America West Airlines, American Airlines, American Trans

Air, Atlas Air, Continental Airlines, Delta Air Lines, DHL Airways, Emery

Worldwide, Evergreen International, Federal Express, Hawaiian Airlines,

Midwest Express, Northwest Airlines, Polar Air Cargo, Reeve Aleutian

Airlines, Southwest Airlines, Trans World Airlines, United Airlines, United

Parcel Service, and US Airways. The ATA's associate, foreign-flag

members are Aeromexico, Air Canada, Canadian Airlines International,

KLM-Royal Dutch Airlines, and Mexicana Airlines.

in

a

The attached brief supplements rather than duplicates the

petition. It demonstrates that the court of appeals misconstrued

Article 4(4) of the Convention by relying on a word in the

American text that does not appear in the governing French text,

and by failing to consider the Executive Branch’s long-standing

contrary interpretation of that provision. The brief also brings to

the Court’s attention the impact of the case at bar on other

pending and possible class actions against the carriers.

For the foregoing reasons, the motion for leave to file the

attached brief should be granted.

Respectfully submitted,

Of Counsel: WILLIAM F. SHEEHAN

ROBERT P. WARREN (Counsel of Record)

DAVID A. BERG FREDERICK C. SCHAFRICK

HEATHER L. MILLER JEFFREY M. KLEIN

AIR TRANSPORT ASSOCIATION SHEA & GARDNER

OF AMERICA 1800 Massachusetts Ave., N.W.

1301 Pennsylvania Ave., N.W. Washington, D.C. 20036

Suite 1100 (202) 828-2000

Washington, D.C. 20004-1707

(202) 626-4000 Counsel for Amicus Curiae

April 24, 2000

TABLE OF CONTENTS

Page

TARA OF BUTI IEEM 6c ccniccnacednassseseanes ll

INTRODUCTION AND SUMMARY .................. ]

RPOINOTE 66.04 cc ecaeesncantenakseantee agence 2

I. THE COURT BELOW ERRED IN RULING

THAT ARTICLE 4(4) IS UNAMBIGUOUS ....... 2

Il. THE EXECUTIVE BRANCH HAS LONG

APPROVED OF THE AIRLINES’

INTERPRETATION OF ARTICLE 4(4) .......... 6

III. MONTREAL PROTOCOL NO. 4 DOES NOT

DIMINISH THE NEED FOR REVIEW OF

BESR APIG REY EAPO occ cence cacsssncancs 9

CORNLZARSMA cc cnceneasen TTT Tre TT TT ee 11

ii

TABLE OF AUTHORITIES

Page

Cases

Air France v. Saks, 470 U.S. 392 (1985) .............. 4,8

Bates v. United States, 522 U.S. 23 (1997) .............. 5

Charlton v. Kelly, 229 U.S. 447 (1913)... ....eeec eee ees 6

Chicago v. Environmental Defense Fund,

Stl UB. SARC sok caaenekéesteseeun oes 5

Distribuidora Dimsa v. Linea Aerea del Cobre,

976 F.2E FG GAG. TRG 65045h5 048s aeesennnenae 4

Eastern Airlines, Inc. v. Floyd,

499 U.S. SIOCIOGED ob hi 0 k4esdndaes eee 4, 6, 8,9

El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155 (1999) .. 6,9

Factor v. Laubenheimer, 290 U.S. 276 (1933) ............ 6

Keene Corp. v. United States, 508 U.S. 200 (1993) ........ 5

Kolovrat v. Oregon, 366 U.S. 187 (1961) .............. 2,6

Nielsen v. Johnson, 279 U.S. 47 (1929) ...........00006- 6

Trans World Airlines, Inc. v. Franklin Mint Corp.,

066 US. HSCS oo 00k kecdicasseeees 6, 8

Treaties

Convention for the Unification of Certain Rules

Relating to International Transportation by Air,

Oct. 12, 1929, 49 Stat. 3000, T.S. 876 (1934),

reprinted in 49 U.S.C. app. § 1502 note ............ 1,2

AmMmg4 orkid itkiseainessees eee 4

eee

TABLE OF AUTHORITIES (cont’d)

Page

BEE 6. ia 6 0kRCi a eh ae ee whee ed Chee eearhe wens 4

PED . b.6-6a. ned bbgieeucuanevees ch iweakcnkes 4

PE 3A Kbbs Rd ewand cana kndecenesuneeawe 4

PED bn vndd bi cadaddunuccsscs rbeaesenees 4

PE bc akenasnecee sean Seeds sseauwke passim

BEE eka sbscunsecvaegucasennsuedbuuseeacuene 4

FERED civic cdavsscvend¥scdiweseskoisasaes 4,5

PL Sin bid cadena daha epaeie beh hetacndes 10

Montreal Protocol No. 4 to Amend the Convention

for the Unification of Certain Rules Relating to

International Carriage by Air, signed at Warsaw on

Oct. 12, 1929, as amended by the Protocol Done at

the Hague on Sept. 8, 1955, reprinted in

S. Exec. Rep. No. 105-20 (1SSG) ... 2. cc cece cence. 2,9

Statutes

Pec PERIOD exe babes se Vi 66 cuneeeeekanes 7

Other Authorities

Civil Aeronautics Board Order 76-3-81 (1976) ........... 6

Sr CFs RU BPUNUPOD Wid cecadcdcccncersconsas 5

International Air Transport Association,

Recommended Practice 1724 on General

Conditions of Carriage (Passengers and Baggage) ....... 7

1A Norman J. Singer, Sutherland Statutory ;

Construction § 32.09 (5 ed. 1993) ............0 00 5

iv

TABLE OF AUTHORITIES (cont’d)

cae

2A Norman J. Singer, Sutherland Statutory

Construction § 46.06 (6 ed. 2000) ..............

U.S. Department of Transportation, Air

Travel Consumer Report (Feb. 1999) .............

U.S. Department of Transportation, Air

Travel Consumer Report (Feb. 2000) .............

U.S. Department of Transportation, Aviation Consumer

Protection Division, Fly-Rights: A Consumer

Guide to Air Travel (8" rev. ed. 1982) ............

U.S. Department of Transportation, Aviation Consumer

Protection Division, Fly-Rights: A Consumer

Guide to Air Travel (11" rev. ed. 1998)

(<http://www.dot.gov/airconsumer/flyrights.htm>)

U.S. Department of Transportation Order 89-10-15,

1989 DOT Av. LEXIS 657 (1989) ............05-

U.S. Department of Transportation Order 97-7-4 (1997) ....

IN THE

Supreme Court of the Gnited States

No. 99-1565

AMERICAN AIRLINES, INC.,

Petitioner,

Vv.

MARIA V. CRUZ, ET AL.,

Respondents.

On Petition for a Writ Of Certiorari To

The United States Court of Appeals for the

District of Columbia Circuit

BRIEF OF THE AIR TRANSPORT ASSOCIATION

OF AMERICA AS AMICUS CURIAE

IN SUPPORT OF THE PETITIONER’

INTRODUCTION AND SUMMARY

The court below, declaring itself locked in by Warsaw

Convention language it found “unyielding,” imposed on air

carriers a requirement that the court itself considered purposeless

and that the airline industry, with the approval of the Executive

Branch, has not considered applicable for decades. We show in

"No counsel for any party had any role in authoring this brief, and no

person other than amicus curiae made any direct monetary contribution to

its preparation or submission. Although the petitioner is a member of the

ATA, it made no special contribution to the preparation of this brief.

eis

Part I that the court of appeals erred in its view of the language at

issue, in particular by disregarding the controlling French text,

which does not even contain the word the court of appeals deemed

dispositive. Our examination demonstrates that Article 4(4) of the

Convention is in fact susceptible of different interpretations,

which then permissibly leads us to Part II, where we show that the

federal regulators of the airline industry have approved of the

airlines’ practice under Article 4(4) since at least the 1970's. That

interpretation by the Executive Branch is entitled to “great

weight” under this Court’s decisions, e.g., Kolovrat v. Oregon,

366 U.S. 187, 194 (1961), and strongly supports the conclusion

that the court of appeals’ contrary interpretation was incorrect.

In Part III], we urge the Court to grant review here

notwithstanding the effect of the Montreal Protocol No. 4 on

future cases. As a doctrinal matter, the decision below creates a

disturbing lower court conflict over the construction of the

Warsaw Convention. Moreover, as a practical matter, the

decision will breathe life into existing class actions against the

airlines for conduct approved by their regulators and invite new

suits potentially involving thousands of claims.

ARGUMENT

I. THE COURT BELOW ERRED IN RULING THAT

ARTICLE 4(4) IS UNAMBIGUOUS

This case turns on the meaning of Article 4(4) of the Warsaw

Convention,” which in the American translation of the governing

French text provides that

if the carrier accepts baggage without a baggage

check having been delivered, or if the baggage

check does not contain the particulars set out at (d),

(f), and (h) above, the carrier shall not be entitled to

2 Convention for the Unification of Certain Rules Relating to

International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. 876

(1934), reprinted in 49 U.S.C. app. § 1502 note.

«ty

avail himself of those provisions of the convention

which exclude or limit his liability.

The “particular” set out at Article 4(3)(/) is “[t]he number and

weight of the packages.” As a matter of consistent practice for

many years, and with the knowledge and approval of the

Executive Branch (see infra), U.S. airlines typically have not

recorded the weight of passengers’ baggage on the baggage check,

but instead have followed a practice — beneficial to passengers —

of assuming that each piece of baggage weighs the maximum

amount permitted by the airline’s tariff without incurring excess

weight charges. By doing so, they have allowed passengers with

baggage weighing far less than the maximum allowed under the

carriers’ tariff to receive a much higher level of compensation

than they would otherwise be entitled to under the Convention.’

The question is whether this benevolent practice strips the airlines

of their limited liability under the Convention.

The district court rule¢ *at, because the text of Article 4(4)

joins the enumerated particulars with the conjunction “and” rather

than “or,” “the plain language of this prevision directs that

liability is lifted only if all three particulars are missing.” Pet.

App. 22a-23a. The court of appeals found that this interpretation

was “linguistically possible,” but not “reasonable.” Jd. 6a. Its

contrary linguistic analysis consisted entirely of one conclusory

sentence:

It is rather clear to us that the word “and” means

that Article 4(4) of the Convention obliges a carrier

to comply with each of the three particulars. Jd.

The court of appeals’ conclusion that Article 4(4) has a single

“unyielding” meaning (id. 7a) is incorrect. It is an ipse dixit rather

than analysis, simply backhanding another interpretation the court

> The average checked bag weighs 25 pounds and bags “rarely” exceed

30 pounds, far below the industry standard weight limit of 70 pounds. U.S.

‘ Department of Transportation Order 89-10-15, 1989 DOT Av. LEXIS 657

*4-*5 (1989).

siie

itself acknowledged the language could bear. More importantly,

it rests entirely on the meaning the court gave to the word “and”

in the text, a word that does not even appear in “[t]he governing

[French] text of the Convention.” Air France v. Saks, 470 U.S.

392, 397 (1985). “Because the only authentic text of the Warsaw

Convention is in French, the French text must guide our analysis.”

Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 535 (1991).

The French text of Article 4(4) contains no conjunction

between the particulars listed in 4(3) (d), (/), and (A). It reads:

[S]i le transporteur accepte les bagages sans qu’ il ait

été délivré un bulletin ou si le bulletin ne contient

pas les mentions indiquées sous les lettres d), f), h),

le transporteur n’ aura pas le droit de se prévaloir des

dispositions de cette Convention qui excluent ou

limitent sa responsabilité.

The absence of any conjunction in the French text means that

“the original French can be read either disjunctively or

conjunctively.” Distribuidora Dimsa v. Linea Aerea del Cobre,

976 F.2d 90, 96 (2d Cir. 1992) (construing Article 8's list of

“particulars,” which also contains no conjunctions). It lends

added credence to the district court’s interpretation of Article 4(4)

and, at the very least, saps the appellate court’s contrary

interpretation of inevitability.

A comparison of Article 4 with Articles 8 and 9, dealing with

air waybills for cargo, further undermines the court of appeals’

conclusion. Article 8, the analogue to Article 4(3), sets out the

“particulars” required to be included in air waybills, and Article

9, the analogue to Article 4(4), sets out the consequences for not

listing those particulars. Article 9 provides in pertinent part that

_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

ee

TN

vie

provisions of this convention which exclude or limit

his liability.‘

The language in Article 9, using the terms “all,” “inclusive,”

and “and,” is quite different from the language of Article 4(4),

which contains none of those words. That difference strongly

suggests that the drafters meant for Article 4(4) to be interpreted

differently from Article 9, and lends further support to the district

court’s interpretation of Article 4(4) as requiring a three-fold

failure to forfeit the Convention’s protection. See Bates v. United

States, 522 U.S. 23, 29 (1997) (“[W]here Congress includes

particular language in one section of a statute but omits it in

another section of the same Act, it is generally presumed that

Congress acts intentionally and purposely in the disparate

inclusion or exclusion.”) (quoting Russello v. United States, 464

U.S. 16, 23 (1983)).°

At the very least, these considerations — the governing French

text of Article 4(4) and the differing text of Article 9 — should

have lifted the appellate court’s eyes from the page. That is

especially true when the result it reached (a) enforces a

* The French text of Article 9 reads, in pertinent part: “Si * * * une

lettre de transport aérien * * * ne contient pas toutes les mentions indiquées

par l’article 8 [a) a i) inclusivement et q)], le transporteur n’ aura pas le droit

de se prévaloir des dispositions de cette Convention qui excluent ou limitent

sa responsabilité.”

* Accord Chicago v. Environmental Defense Fund, 511 U.S. 328, 338

(1994) ; Keene Corp. v. United States, 508 U.S. 200, 208 (1993) (noting the

Court’s “duty to refrain from reading a phrase into the statute when

Congress has left it out.”); 2A Norman J. Singer, Sutherland Statutory

Construction § 46.06 (6" ed. 2000) (“[W]hen the legislature uses certain

language in one part of the statute and different language in another, the

court assumes different meanings were intended” and “where the legislature

has carefully employed a term in one place and excluded it in another, it

should not be implied where excluded.”); see also 87 C.J.S. Treaties § 13

(1954) (rules for construing treaties are similar to those for statutes); 1A

Norman J. Singer, Sutherland Statutory Construction § 32.09 (5" ed. 1993)

(same).

=

“purposeless” requirement, (b) flouts this Court’s oft-repeated

command that “treaties are construed more liberally than private

agreements,” and (c) disregards the Convention’s “primary

purpose of * * * limiting the liability of air carriers.” Floyd, 499

U.S. at 535, 546 (interior quotations and citations omitted).

In particular, the court of appeals should have considered,

among the additional available aids to construction, the Executive

Branch interpretation of Article 4(4). We turn now to that subject.

Il. THE EXECUTIVE BRANCH HAS LONG

APPROVED OF THE AIRLINES’

INTERPRETATION OF ARTICLE 4(4)

The Executive Branch’s interpretation of treaties “is given

great weight.” Kolovrat v. Oregon, 366 U.S. 187, 194 (1961); see

also El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 168 (1999)

(citing Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176,

184-85 (1982)) (“Respect is ordinarily due the reasonable views

of the Executive Branch concerning the meaning of an

international treaty.”); Trans World Airlines, Inc.v. Franklin Mint

Corp., 466 U.S. 243, 259 (1984); Factor v. Laubenheimer, 290

U.S. 276, 295 (1933); Nielsen v. Johnson, 279 U.S. 47, 52 (1929);

Charlton v. Kelly, 229 U.S. 447, 468 (1913).

In the early years of the aviation industry, when payload weight

was the primary limiting factor in long-distance air travel, airlines

weighed luggage to ensure the safe operation of aircraft. See Civil

Aeronautics Board Order 76-3-81, at 3 (1976). Over time,

however, “changes in technology improved the operational

characteristics of aircraft to the point where, by and large, the

weight of the payload of a full plane does not restrict the range of

the aircraft.” Jd. at 3-4. As the original justification for the

weighing of bags evaporated, and with the approval of the

Executive Branch, airlines stopped weighing bags as a matter of

course.

Accordingly, for over 20 years the airlines have had tariffs on

file with the Department of Transportation that state in pertinent

Se ee ee

«ts

part: “For the purpose of determining liability under the

convention with respect to passenger baggage acceptable for

checking * * * the weight of each piece of such baggage shall be

deemed to be the maximum free allowable weight for each piece

of such baggage under the Rule unless the actual weight is stated

on the passenger’s ticket.”° Thus, the carriers’ practice of

deeming missing or damaged bags to have weighed the maximum

free allowable weight, if the actual weight has not been recorded,

has long been known and accepted by the Department of

Transportation.

The Department has aiso approved inter-carrier agreements

containing comparable provisions. An agreement adopted by the

International Air Transport Association (“IATA”) provides in

relevant part: “If the weight of the baggage is not recorded on the

baggage check, it is presumed that the total weight of the checked

baggage does not exceed the applicable free baggage allowance

for the class of service concerned, as provided in the Carrier’s

Regulations.” See Recommended Practice 1724 on General

Conditions of Carriage (Passengers and Baggage) § 16.3.4. The

Department approved that IATA agreement under 49 U.S.C.

§ 41309(b), which allows approval only when, inter alia, “the

Secretary finds it is not adverse to the public interest * * *.” See

U.S. Department of Transportation Order 97-7-4 (1997)

(approving procedures for flights outside the U.S.).

Moreover, for almost twenty years the Department of

Transportation has advised the traveling public that the airlines’

practice is acceptable. The Department’s “Consumer Guide to Air

Trave’” states:

On international trips, the liability limit is set by a

treaty called the Warsaw Convention. Unless you

buy excess valuation, the liability limit is $9.07 per

pound ($20 per kilo). In order to limit its liability

* Petitioner’s tariffs appear at pp. 326 and 337 of the Joint Appendix in

the Court of Appeals.

to this amount, the airline must use one of the

following procedures:

1) The carrier weighs your bags at check-in and

records this weight on your ticket. The airline’s

maximum liability to you is that weight multiplied

by $9.07 (or by $20, if the weight was recorded in

kilos).

2) Instead of weighing your luggage, the carrier

assumes that each of your bags weighs the

maximum that it agrees to accept as checked

baggage, usually 70 pounds (32 kilos). This yields

a liability limit of about $640 per bag.”

This long-standing Executive Department approval of the

airlines’ practice is entitled to great weight in interpreting Article

4(4). It reflects “the practical construction adopted by the

parties,” which the Court has held to be a valuable interpretative

aid, Floyd, 499 U.S. at 535 (citations and internal quotations

omitted), and the sort of “flexible implementation of the

Convention’s terms” that the Court has credited for the

Convention’s durability. Franklin Mint, 466 U.S. at 259; see also

Saks, 470 U.S. at 403 (“Reference to the conduct of the parties to

the Convention and subsequent interpretations of the signatories

helps clarify the meaning of the term.”).

In short, the court of appeals’ conclusion that the Convention’s

terms were “unyielding” was the cause (and perhaps the result) of

its failure to consider and be guided by the Executive Branch’s

contrary interpretation. As we now show, the court’s erroneous

ruling has continuing ramifications beyond the case at bar.

” U.S. Department of Transportation, Aviation Consumer Protection

Division, Fly-Rights: A Consumer Guide to Air Travel, ch. 5, p. 28 (11th

rev. ed. 1998) (emphasis added) (also available on the Intermet at

<http://www.dot.gov/airconsumer/flyrights.htm> ). Earlier editions also

endorsed the carriers’ practice. See, for example, the 8" rev. ed., published

in 1982, at 13-14.

ote

Ill. MONTREAL PROTOCOL NO. 4 DOES NOT

DIMINISH THE NEED FOR REVIEW OF THE

DECISION BELOW

Although Montreal Protocol No. 4, ratified by the Senate on

September 28, 1998 and entered into force on March 4, 1999,°

relieves airlines of the requirement of recording baggage weight

on claim checks, the Court should nevertheless grant review and

reverse the erroneous decision below, for both doctrinal and

practical reasons.

First, review is warranted because, as the petition points out(at

17), “[t]he cardinal purpose of the Warsaw Convention * * * is to

‘achiev[e] uniformity of rules governing claims arising from

international air transportation.”” Tseng, 525 U.S. at 169 (quoting

Floyd, 499 U.S. at 552). Yet the decision below exacerbates an

already existing conflict among the many courts that have

considered the meaning of Article 4(4). As the court of appeals

noted, acknowledging the conflict, “it is for the Supreme Court to

supply uniformity.” Pet. App. 8a.

Second, review is warranted for intensely practical reasons.

That is because, if allowed to stand, the decision below foretells

massive litigation against the airlines. Although the industry has

a superb record of handling baggage — 99.5% of checked bags in

domestic transportation reach their intended destination

undamaged and on the same flight as their owners’ — the sheer

number of bags conveyed is staggering. In 1999, the airlines

® Montreal Protocol No. 4 to Amend the Convention for the Unification

of Certain Rules Relating to International Carriage by Air, signed at Warsaw

on Oct. 12, 1929, as amended by the Protocol Done at the Hague on Sept. 8,

1955, reprinted in S. Exec. Rep. No. 105-20 (1998) (incorporating the

Hague Protocol’s baggage standards).

* See U.S. Department of Transportation, Air Travel Consumer Report

17 (Feb. 2000). According to ATA statistics, of the 0.5% of bags that are

delayed, 80% are returned within 24 hours, and 99% within five days. Only

0.005% of all bags are ultimately lost or stolen.

«thx

transported approximately 90 million checked bags in

international travel. Assuming that the 99.5% figure applies to

international as well as domestic transportation (no comparable

figures for international travel exist), the remaining 0.5%

translates into about 450,000 passenger reports of delayed, lost, or

pilfered baggage each year. Cf. U.S. Department of

Transportation, Air Travel Consumer Report 18 (Feb. 1999). If

each of those passengers asserted that their lost bags were worth

$5,000 (as the plaintiffs did in the case at bar, see Pet. App. 24a)

instead of $640, that would amount to $2.25 billion in baggage

claims last year alone.

Although not all mishandled baggage reports lead to claims for

compensation, it is clear that the Court’s decision whether to issue

the writ will impact a huge number of potential cases. Moreover,

four putative class actions have been filed against airlines seeking

to reopen past baggage claims settled for the amounts of $635 or

$640.'° These suits seek to void potentially thousands of baggage

claim settlements on the ground that the Warsaw Convention’s

liability limitations did not apply because no baggage weights

appeared on plaintiffs’ baggage checks. There is a risk that

similar suits against other airlines, including foreign carriers, may

be filed in districts across the country until March of 2001."

Thus, besides the actions already pending, an unknown number of

future class actions against the airlines may directly rely on the

disposition of this case.

'° In addition to the case at bar, see Curtin v. United Airlines, Inc., No.

99-CV-3056 (RCL) (D.D.C.); Lassow v. Northwest Airlines, No. 99-CV-

32689 (GK) (D.D.C.); and Stevens v. Delta Air Lines, Inc., No. 99-CV-3368

(RWR) (D.D.C.).

'' The Convention’s limitations period is two years (see Article 29);

March 2001 is two years from the Montreal Protocol’s entry into force date.

cans

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Of Counsel: WILLIAM F. SHEEHAN

ROBERT P. WARREN (Counsel of Record)

DAVID A. BERG FREDERICK C. SCHAFRICK

HEATHER L. MILLER JEFFREY M. KLEIN

AIR TRANSPORT ASSOCIATION SHEA & GARDNER

OF AMERICA 1800 Massachusetts Ave., N.W.

1301 Pennsylvania Ave., N.W. Washington, D.C. 20036

Suite 1100 (202) 828-2000

Washington, D.C. 20004-1707

(202) 626-4000 Counsel for Amicus Curiae

April 24, 2000