Amicus Curiae Brief — Chubb & Son, Inc. v. Asiana Airlines

Supreme Court, US. i

{LED

JUN 1 2001

No. 00-720

Jn the Supreme Court of the Dnited States

~ ew eee

CHUBB & SON, INC., PETITIONER

v.

ASIANA AIRLINES

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

BARBARA D. UNDERWOOD

WILLIAM H. TAFTIV Acting Solicitor General

Legal Adviser Counsel of Record

occa dame 4 Fong Ad a STUART E. SCHIFFER

ashington, D.C. 2052 Acting Assistant Attorney

ROSALIND A. KNAPP General

Acting General Counsel EDWIN S. KNEEDLER

Department of Transportation Deputy Solicitor General

Washington, D.C. 20590

g MATTHEW D. ROBERTS

Assistant to the Solicitor

General

MICHAEL JAY SINGER

ROBERT M. LOEB

Attorneys

Department of Justice

Washington, D.C. 20580-0001

(202) 314-2217

QUESTION PRESENTED

Whether, in 1995, the United States and the Republic of

Korea were in a treaty relationship under the Warsaw Con-

vention (The Convention for the Unification of Certain Rules

Relating to International Transportation by Air, done at

Warsaw Oct. 12, 1929, 49 Stat. 3000, -137 L.N.T.S. 11, re-

printed in 49 U.S.C. 40105 note).

(1)

TABLE OF CONTENTS

Page

Titel eric nnniachacieinainin |

LER an TR oe ee ER 7

I a a sceneaveniibobielouiiinabenante 20

TABLE OF AUTHORITIES

Cases:

Alexander v. Pan Amerian World Airways, Inc.,

Be re CPs E> ROOD ceccicsncccscccinssinancpnnicccvosssionssnestss 19

Chan v. Korean Air Lines, Ltd., 490 U.S. 122

aIITIIITET teiicictt dad phadeabdcilesnadlaesinidadiandeniniaibidadengsabsatsbetusesntesindeianenebnenes 12

Eastern Airlines, Inc. v. Floyd, 499 U.S. 530

ede 1

El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155

eR EEE SEE RNP vn ne oe Ont Re Dee 1,4, 9, 13, 14, 16

Fujitsu Ltd. vy. Federal Express Corp., 247 F.3d

I edeiniaaionbinhs 10, 18

Holmes v. Bangladesh Bimani Corp., 87 1.L.R. 365

I ie lucesinieniaiion 15

Hyosung (Am.), Inc. v. Japan Air Lines Co.,

624 F’. Supp. 727 (S.D.N.Y.. 1985) ........cccsscssorsssssssssesees 6, 13, 16

Hyundai Marine & Fire Ins. v. Korean Air Lines

NE SE Rs PUNE TGs RIUPEND scciccnessannncnsinseoasscscnsdesnassscndcnansaies 15

Korean Air Lines Disaster of Sept. 1, 1983, In

re, 664 F. Supp. 1463 (D.D.C. 1985), aff'd, 829 F.2d

1171 (D.C. Cir. 1987), aff'd sub nom. Chan v.

Korean Air Lines, Ltd., 490 U.S. 122 (1989) occ. 6,16

Reed v. Wiser, 555 F.2d 1079 (2d Cir.), cert. denied,

I a ekisaceeanlbisinanions 4

Steel Co. vy. Citizens for a Better Env’t, 523 U.S.

I aD cessdoliinbonntpdiuundnddonns be!

Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176

I as a psialinisbidaueeuines 14

The Amiable Isabella, 19 U.S. (6 Wheat.) 1 (1821) wo... 12

(III)

IV

Cases—Continued: Page

United States v. Erika, Inc., 456 U.S. 201 (1982) ............ 11

Zicherman v. Korean Air Lines Co., 516 U.S. 217

LRP Ase rete ME Sar ARS RR STN RD DWTS CAME SON Son 1

Treaties and statute:

Convention for the Unification of Certain Rules

Relating to International Transportation by Air,

done at Warsaw Oct. 12, 1929, 49 Stat. 3000,

137 L.N.T.S. 11, reprinted in 49 U.S.C.

MINED siishekcitalcha tecnsdechiccthaesshttstoebcetheinaiiindiandephlccinaibenabiatambsihtisy 1

ED sastbenceciiatntstitnicmuasi iis ciaichiceti tate ee | 2

Te calotiadidtcininela Mcaricabtnaetecteiouiatetad nail aadubial ines 18

es Actinic dieritesictinnsetnieanehiciietancehabshaeastiaabnaniidaeh beatiactibaslesidicaaeenitiab 17

SO a casasisstiiea oniatsts eacaatonaipalecicanataten 2,3, 5,6, 19

iis Ue Setesecdatecinadeiatadiadeenacdnbazatebroamaaaaciiiaaiamaldlamiad 2,19

SE, Te idl cecieviinakdeainmsisnindecontiidestuleditamnb acids ate 2

SIE TD snssitescnniinnerinsiianincsetesnsisetcieniiidabsinihanivitecacsnitincatinksninananeidiai 2,8

St ESE ON SA NTT EOE PUERTO eRe nO ERAN 2

TEN TE ROO SH Seen ON 2,5, 6, 16, 19

TT 2,3,9

TE ie eae SESE OSM L Aa 2.9

Convention on International Civil Aviation, 7 Dec.

TR aT eT 14-15

Montreal Protocol No. 4 to Amend the Convention

for the Unification of Certain Rules Relating to

International Carriage by Air Signed at Warsaw on

12 Oct. 1929 as Amended by the Protocol Done at

The Hague on 28 Sept. 1955, Signed at Montreal

OE Tae RE, RP siraicinncesensesncnnasisinslenledabins tcatenieitienaaisiinaianiiinies 4

OA, Fh sicceiin ecient en cipasaatacattaonenoiatine 18

I. Tia sicstcindicaesscatencachehsehibeteiaiiasinladindeallceiiinaniahaiion 17

IG TAG siiasincnsenniiusiesiteitasiaaciniianeanniaanaiibataillaadiiianaatanieis 18

Treaties and statute—Continued:

Protocol to Amend the Convention for the Unification

of Certain Rules Relating to International Carriage

by Air Signed at Warsaw on 12 Oct. 1992, done at

The Hague on 28 Sept. 1955, 478 U.N.T.S. 371

art. I

seen ee eeeeenoees

PPUTUTETETTTITTITICITTT TT

errr rrrrrrrrrrrrrrrrrrrrrrrrrrrrcrrrrrrrrrrr iri t ii er

errrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrir rites)

errr rrr rrrrrrrrrrrrrrrrrrrrrrrrrrrr titi eea

,: MD onnicisiaaioisnisdngmimaesenciataions anita dacidabaacematliais

. XXIII

mit, TERR) cinincsascasssiarainaseincnnnssnniobannont

Vienna Convention on the Law of Treaties, May 23,

1996, 1155 U.N.T.S. 331

PPUTTTTTTTTTLIT Tae)

PPrrrrrrrrrrrrrrrerrrrrrrrrrrrriii ities

Br, IID esisesesrntntssnnitnsnnsniiiantenhniiancinstinasinndaaiainanatnniaabiai

28 U.S.C. 1331

Miscellaneous:

Bin Cheng, What is Wrong with the 1975 Montreal

Additional Protocol No. 32, 14 Air Law 220 (1989)

Civil Aeronautics Board, Aeronautical Statutes

and Related Material (1974)

Maria Frankowska, The Vienna Convention on the

Law of Treaties Before United States Courts, 28

Va. J. Int'l L. 281 (1988)

Richard Gardiner, Carriage by Air in the U.S. Court

of Appeals, 1988 Lloyds Mar. & Com. L.Q. 151

Richard Gardiner, Revising the Law of Carriage by

Air: Mechanisms in Treaties and Contract, 47 Int’l

& Comp. L.Q. 278 (1998) .........scececccscssssnsscssseseseeees

Elmar Giemulla et al., Warsaw Convention (1992)

Lawrence B. Goldhirsch, The Warsaw Convention

Annotated: A Legal Handbook (1988)

Tae Hee Lee, The Current Status of the Warsaw

Convention and Subsequent Protocols in Leading

Asian Countries, 11 Air Law 242 (1986) .......: cee

PreeeeTTETTreeerrrr rrr

PPUPeTOCCTOCTOOCOOOeee rrr rir)

eee eeeeeseseee

Seemann ene area eeseneeres

Page

3,4,9

3, 4, 6, 10, 11, 13, 18

12

12

12,13

5, 7,8

11

10

11

10, 11, 15, 16

11-12

Vl

Miscellaneous — Continued: Page

Letter from Dr. Ludwig Weber, Director, Legal

Bureau, ICAO, to David Shapiro, Alternate

Representative of the United States on the Council

Of ICAO (May 17, BOOT) ..scacccccesascscssasseccscsasssscossscnssonssscnseseses 14

Letter from Robert E. Dalton, Assistant Legal Advisor

for Treaty Affairs, Dep't of State, to David M.

Salentime (et. 10, 19B1) ....ccccccccrccrsrsscssssccsscsssssssscssssnscssssenees 13

Andreas F. Lowenfeld & Allan 1. Mendelsohn, The

United States and the Warsaw Convention, SO

Bhaoy. 1. Rav. GBF (IDET) cnunccsassssescccsuncsnissniestasectinnenssnsinctseian 2

Rene H. Mankiewiez, The Liability Regime of the

International Atr Carrier VU981) cccccccccsccseeeteeeeeeeeennees 12

Report of the International Law Commission on its

Kighteenth Session 4 May——19 July 1966 oe 12-13

Restatement (Third) of the Foreign Relations Law of

the United States (19087) ....ccsssncssocsccsscsecssscssccsssonssnssssssccsseess 4

S. Exee. Rep. No. 20, 105th Cong., 2d Sess. (1998) ............. 9

S. Treaty Doe. No. 45, 106th Cong., 2d Sess. (2000) ........... 19

U.S. Dep't of State, Treaties in Force V982) ccc 14

U.S. Dep't of State, Treaties in Force (2000) ............ 2,4, 9, 14

Jn the Supreme Court of the Cinited States

No. 00-720

CHUBB & SON, INC., PETITIONER

v.

ASIANA AIRLINES

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

This brief is filed in response to the Court’s order inviting

the Solicitor General to express the views of the United

States.

STATEMENT

1. a. The Convention for the Unification of Certain Rules

Relating to International Transportation by Air, done at

Warsaw October 12, 1929 (Original Warsaw Convention), 49

Stat. 3000, 137 L.N.T.S. 11, reprinted in 49 U.S.C. 40105

note, has two basic purposes: to “foster uniformity in the law

of international air travel,” Zicherman v. Korean Air Lines

Co., 516 U.S. 217, 230 (1996), and to “limit{] the liability of air

carriers in order to foster the growth of the fledgling com-

mercial aviation industry,” Eastern Airlines, Inc. v. Floyd,

499 U.S. 530, 546 (1991). See also El Al Israel Airlines, Ltd

v. Tseng, 525 U.S. 155, 169-170 (1999). To those ends, the

Convention prescribes an extensive set of legal principles

—

(1)

2

generally applicable “to all international transportation of

persons, baggage, or goods performed by aircraft.” Original

Warsaw Convention, art. 1(1). See generally Andveas F.

Lowenfeld & Allan I. Mendelsohn, The United States and the

Warsaw Convention, 80 Harv. L. Rev. 497 (1967).

At the core of the Convention is a series of provisions gov-

erning the nature and scope of a carrier's liability for harms

occurring in the course of international air travel. The Con-

vention divides such harms into three categories: personal

injury (Art. 17), damaged or lost baggage or cargo (Art. 18),

and damage due to delay (Art. 19). Article 22(2) limits an air

carrier’s liability to $20 per kilogram of cargo lost. Article 9

of the Convention, however, precludes an air carrier from

availing itself of Article 22(2)’s liability limitation if “the air

waybill does not contain all the particulars set out in article

8(a) to (2), inclusive, and (q).” Original Warsaw Convention,

art. 9. Article 8(c) requires that the air waybill contain,

among other things, “(t]he agreed stopping places” for the

shipment. Original Warsaw Convention, art. 8(c).

On July 31, 1934, the United States deposited its ad-

herence to the Original Warsaw Convention as provided in

its Article 38, which permits any State to adhere to the

Convention after it has come into force by notifying the

Covernment of Poland, the depositary for the Convention.

The Convention entered into force for the United States on

October 29, 1934. See U.S. Dep't of State, Treaties in Force

344 (2000); 49 Stat. at 3013. The Republic of Korea (South

Korea) was not in existence when the Original Warsaw Con-

vention was signed and concluded, and South Korea has

never adhered to the Original Convention in accordance with

Article 38.

b. As the airline industry and the world economy grew,

the liability limitations in the Original Convention became

increasingly unpopular in the United States and other coun-

tries. In 1955, a conference convened at the Hague to

resolve the question whether those limits should be changed

a

3

or eliminated. Pet. App. lla. The result of the conference

was the Protocol to Amend the Convention for the Unifi-

cation of Certain Rules Relating to International Carriage

by Air Signed at Warsaw on 12 October 1929, done at The

Hague on 28 September 1955 (Hague Protocol or Protocol),

478 U.N.T.S. 371.

The Hague Protocol changed some outdated language in

the Original Warsaw Convention, doubled the per-passenger

liability limitation to $16,600, and removed most of the ex-

ceptions to limited liability for shippers of goods. Pet. App.

lla. As relevant here, the Protocol amended Article 8(c) of

the Original Warsaw Convention to eliminate the require-

ment that the waybill list not just the place of departure and

ultimate destination but also all the agreed stopping places.

Hague Protocol, art. VI.

The final clauses of the Hague Protocol prescribe the

mechanism by which the Protocol comes into force and

address the relationship between the Protocol and the

Original Warsaw Convention. Of relevance to this case,

Article XIX provides that:

As between the Parties to this Protocol, the Convention

and the Protocol shall be read and interpreted together

as one single instrument and shall be known as the

Warsaw Convention as amended at The Hague, 1955.

Hague Protocol, art. XIX. Another of the final clauses,

Article XXIII, provides (as Article 38 does for the Original

Convention) that States may adhere to the Protocol after it

has come into force by depositing an instrument of adher-

ence with the Government of Poland, which is also the de-

positary for the Protocol. Article XXIII(2) provides that:

Adherence to this Protocol by any State which is not a

Party to the Convention shall have the effect of ad-

herence to the Convention as amended by this Protocol.

4

Hague Protocol, art. XXIII(2).!

Although the United States signed the Hague Protocol on

June 28, 1956, the United States did not ratify it and has not

adhered to it as provided in Article XXIII. See Treaties im

Force, supra, at 344 n.1; Reed v. Wiser, 555 F.2d 1079, 1083-

1088 (2d Cir.), cert. denied, 434 U.S. 922 (1977). On July 18,

1967, South Korea deposited with the Government of Poland

notification of its adherence to the Hague Protocol. The

Hague Protocol entered into force for South Korea on

October 11, 1967."

2. In 1995, Samsung Electronics Co., Ltd., contracted

with respondent Asiana Airlines to ship 17 parcels of com-

puter chips from Seoul, South Korea, to San Francisco,

California. The waybill for the 17 parcels provided for ship-

ment on August 10, 1995, on Asiana Flight 214 from Seoul to

1 Article XXI, which governs initial ratification of the Protocol, con-

tains a provision similar to Article XXIII(2) that applies to the States that

signed and ratified the Protocol to bring it into force. ‘hat provision

states that:

Ratification of this Protocol by any State which is not a Party to the

Convention shall have the effect of adherence to the Convention as

amended by this Protocol.

Hague Protocol, art. XX1(2).

- There have been further protocols to amend the Warsaw Convention

as amended at the Hague, only one of which has entered into force for the

United States. On March 4, 1999, Montreal Protoce! No. 4 to Amend the

Convention for the Unification of Certain Rules Relating to International

Carriage by Air Signed at Warsaw on 12 October 1929 as Amended by the

Protocol Done at The Hague on 28 September 1955, Signed at Montreal on

25 September 1975 (Montreal Protocol No. 4), entered into force for the

United States. Because this dispute arose in 1995, however, Montreal

Protocol No. 4 is not at issue in this case. See Pet. App. 13a; Restatement

(Third) of the Foreign Relations Law of the United States § 322(1), at 191

(1987); El Al, 525 U.S. at 160 (noting that the question before the Court in

that case had been settled “prospectively” by Montreal Protocol No. 4,

which was ratified after the dispute in the case arose); see also note 15,

infra.

5

San Francisco, with no other scheduled stops. However,

Asiana instead transported the parcels on Asiana Flight

202 from Seoul to Los Angeles, California, and thereafter

trucked the parcels to San Francisco. Upon delivery in San

Francisco, two parcels, which contained $583,000 worth of

chips and together weighed 35.3 kilograms, were missing.

Pet. App. 4a.

Samsung Semiconductor, the intended recipient of the

computer chips, filed an insurance claim with petitioner

Chubb & Son, Inc. Petitioner paid Samsung Semiconductor

$583,000 plus an additional amount based on the terms of

Samsung’s cargo insurance policy. Pet. App. 4a.

3. Petitioner, as subrogee of Samsung Semiconductor,

then brought suit against respondent in the United States

District Court for the Southern District of New York, to

recover the value of the lost computer chips plus the addi-

tional amount paid under the terms of the insurance policy.

The parties filed cross-motions for summary judgment on

the issue whether respondent could invoke the air carrier

liability limitation in Article 22(2) of the Warsaw-Convention

to limit its hability to a maximum of $20 per kilogram of

cargo lost or damaged. Pet. App. 5a. The motions were re-

ferred to a magistrate judge, who recommended that peti-

tioner’s motion be granted because respondent had failed to

comply with the waybill requirements in Article &(c). Jd. at

48a-61a.

4. Before the district court ruled on the magistrate’s re-

port, respondent filed a supplemental motion for summary

judgment, questioning the court’s subject matter jurisdiction

under 28 U.S.C. 1331. Pet. App. 6a. On September 22, 1998,

the district court granted partial summary judgment for re-

spondent. /d. at 32a-47a. The district court recognized that

“the United States has ratified the [Original Warsaw] Con-

vention but not the [Hague] Protocol, while [South] Korea

has ratified the [Hague] Protocol but not the [Original

Warsaw] Convention.” Jd. at 38a. Relying on In re Korean

6

Aur Lines Disaster of September 1, 1983, 664 I. Supp. 1468

(D.D.C. 1985), aff'd, 829 F.2d 1171 D.C. Cir. 1987), aff'd sub

nom. Chan ve. Korean Air Lines, Ltd., 490 U.S. 122 (1989),

and Hyosung (America), Inc. v. Japan Aur Lines Co., 624 F.

Supp. 727 (S.D.N.Y. 1985), however, the court held that the

United States and South Korea were both parties to a treaty

composed of those articles common to the Original Warsaw

Convention and the Warsaw Convention as amended by the

Hague Protocol. Pet. App. 88a-48a. Because the waybill

requirement of Article S(c) of the Original Warsaw

Convention was amended by the Hague Protocol, the court

concluded that Article 8(¢) did not constitute part of that

hybrid treaty agreement between the United States and

South Korea. Jd. at dda. Because, however, the Hague

Protocol retained without amendment the liability limitation

in Article 22(2) of the Original Convention, the court

concluded that limitation was part of the agreement. /d. at

46a-47a. The court accordingly held that respondent’s

liability is limited to $706. Jd. at 47a.

5. The court of appeals reversed and remanded the case

for further proceedings. Pet. App. la-3la. The court noted

that, “in 1995 when this dispute arose, the United States had

ratified the Original Warsaw Convention but not the Hague

Protocol, while South Korea had adhered to the Hague

Protocol but not the Original Warsaw Convention.” Jd. at

l2a. Relying on Article XXIII(2) of the Protocol, the court

concluded that “[t]hose States that adhered to the Hague

Protocol specifically adhered to the Warsaw Convention as

amended at the Hague, not the Original Warsaw Con-

vention.” /d. at 19a. Although South Korea could have

adhered separately to the Original Warsaw Convention, the

court reasoned, South Korea “never exercised that op/ion,”

and thus was not in a treaty relationship with the United

States pursuant to the Original Warsaw Convention. /d. at

19a-20a.

7

The court of appeals also rejected the district court's con-

clusion that the United States and South Korea were in

treaty relations with respect to the unamended portions of

the Original Convention. Pet. App. 22a. The court reasoned

that, “[e]ven if it could be said that South Korea agreed to be

bound by a subset of the Original Warsaw Convention when

it adhered to the Hague Protocol, the United States did not

agree to be bound by that same subset of provisions when it

ratified the Original Warsaw Convention.” /d. at 28a-24a.

The court also explained that holding the United States

bound by the unamended portion of the Warsaw Convention

would violate the doctrine of separation of powers by

impermissibly encroaching on the treaty-making powers of

the political Branches. Id. at 25a-26a. Holding the United

States thus bound would place it in a treaty providing

limited liability despite the carrier's failure to include the

particulars on the waybill—‘a fundamental alteration of the

Original Warsaw Convention resulting in an entirely differ-

ent outcome.” Jd. at 28a. The court concluded that “no pre-

cedent in international law allows the creation of a separate

treaty based on separate adherence by two States to two

different versions of a treaty, and it is not for the judiciary to

alter, amend, or create an agreement between the United

States and other States.” Jd. at 30a. Because the court held

that there was no treaty relationship between the United

States and South Korea on the subject, it concluded that the

‘ase does not arise under a treaty of the United States for

purposes of federal question jurisdiction under 28 U.S.C.

1331. The court of appeals remanded to the district court

“for further proceedings to determine whether there exists

some other ground for subject matter jurisdiction.” Pet.

App. 3la.

DISCUSSION

The court of appeals correctly resolved the question

presented by the petition for a writ of certiorari. At the time

S

that the dispute in this case arose, there was ne treaty re-

lationship between the United States and South Korea

under the Original Warsaw Convention, the Hague Protocol,

or a treaty consisting of those provisions of the Original

Convention that were not amended by the Protocol. There is

no conflict among the courts of appeals on that question.

Moreover, the ruling of the court of appeals should have

limited effects and is interlocutory. Further, the decision of

the court of appeals actually favors petitioner on the merits

because the consequence of the court’s ruling is that peti-

tioner’s claim ayainst respondent is not subject to the lia-

bility limitation in the Warsaw Convention. Accordingly,

this Court should deny the petition.’

1. The court of appeals correctly concluded that, at the

time the dispute in this case arose, the United States and

South Korea were not in a treaty relationship with each

other under any of the treaties in the Warsaw Convention

system. At that time, the United States and South Korea

were party to two separate international agreem nts. The

* The court of appeals viewed its conclusion that there was no treaty

relationship between the United States and South Korea as depriving

the district court of subject matter jurisdiction under 28 U.S.C. 1331.

Although the conclusion that there was no treaty relationship means that

petitioner has no cause of action under Article 18 of the Warsaw Con-

vention, it is not clear that the absence of a treaty relationship means that

the federal courts lack subject matter jurisdiction over the claim. See

Steel Co. v. Citizens fora Better Env't, 523 U.S. 838, 89 (1998) (noting that

“the absence of a valid (as opposed to arguable) cause of action does not

implicate subject-matter jurisdiction, 7.¢., the courts’ statutory or consti-

tutional power to adjudicate the case”), The question whether the court of

appeals erred in viewing the lack of a treaty relationship as a furisdictional

question is not, however, of sufficient importance to warrant this Court's

review. Moreover, the court of appeals remanded to the district court for

a determination whether there is diversity jurisdiction, Pet. App. 31a, and

a finding of diversity jurisdiction would render the jurisdictional aspect of

the court of appeals’ holding irrelevant to the outcome of the case. See

also Pet. 8 (asserting that diversity Jurisdiction exists).

9

United States was a party to the Original Warsaw Con-

vention.’ The United States was not, however, a party to

the Hague Protocol.” South Korea, on the other hand, was a

party to the Hague Protocol." South Korea was not, how-

ever, a party to the Original Warsaw Convention.‘

a. The court of appeals correctly rejected petitioner's

contention (Pet. App. 18a) that, by adhering to the Hague

Protocol, South Korea necessarily also became a party to the

Original Warsaw Convention. Interpretation of a treaty be-

gins with its text. See Hl Al, 525 U.S. at 167. Article XIX of

the Hague Protocol provides that, “[als between Parties to

this Protocol, the Convention and the Protocol shall be read

and interpreted together as one single instrument and shall

be known as the Warsaw Convention as amended at The

Hague, 1955.” Hague Protocol, art. XIX. That provision

4 In accordance with Article 38 of the Convention, which provides that

any State may adhere to the Convention after it has come into force by

notifying the Government of Poland, the United States deposited its

adherence on July 31, 1934. The Convention entered into force for the

United States on October 29, 1934. See Treaties in Force, supra, at 344;

49 Stat. at 3013.

® The United States signed the Hague Protocol on June 28, 1956, but

never ratified it. The Senate had not given its advice and consent by 1967,

at which time the Administration withdrew the Protocol from Senate con-

sideration. See S. Exec. Rep. No. 20, 105th Cong., 2d Sess. 48 (1998). The

Administration considered the increase in liability limits for claims in-

volving death or bodily injury insufficient without legislation providing for

supplemental accident insurance for passengers, and Congress failed to

adopt that legislation. /bid.

* On July 13, 1967, South Korea adhered to the Hague Protocol in

accordance with its Article XXIII, which provides that any State may

adhere to the Protocol after it has come into force by depositing an instru-

ment of adherence with the Government of Poland. The Protocol entered

into force for South Korea on October 11, 1967.

7 South Kerea was not in existence at the time that the Original War-

saw Convention was signed and concluded, and South Korea has never

adhered to the Original Warsaw Convention as provided in its Article 38.

10

incorporates into the Protocol those provisions of the War-

saw Convention that were not amended by the Protocol in

order to create a single, separate agreement that stands on

its own. See Richard Gardiner, Revising the Law of

Carriage by Air: Mechanisms in Treaties and Contract, 47

Int’l & Comp. L.Q. 278, 280 (1998) (explaining that “the

Protocols do not simply introduce amendments to the

original treaty. In effect * * * they each produce a new

composite version”). Article XXIII(2) of the Protocol pro-

vides that “[a]dherence to this Protocol by any State which

is not a Party to the Convention shall have the effect of ad-

herence to the Convention as amended by this Protocol.”

Hague Protocol, art. XXIII(2).° That provision clearly pro-

vides that, by adhering to the Protocol, a State becomes a

party to the new stand-alone agreement, the Warsaw

Convention as amended at The Hague, 1955.”

The text of Article XXIII(2) does not in terms exclude the

possibility that a State, by becoming a party to the new

8 Article XXI contains a parallel provision that applies to the States

that signed and ratified the Protocol to bring it into force. That provision

states that:

Ratification of this Protocol by any State which is not a Party to the

Convention shall have the effect of adherence to the Convention as

amended by this Protocol.

Hague Protocol, art. XX1I(2).

9 “(Multilateral treaties such as the Warsaw Convention, * * * fre-

quently are modified—but not thereby terminated—by ‘amend|ing] agree-

ments binding only those parties that were willing to accept the amend-

ment while leaving the original or earlier amended agreement still in force

to govern relations between the other parties, as well as between the

other parties and the amending group. As a result, it has become fairly

common for several versions of a multilateral treaty to exist simultane-

ously, with different sets of provisions operating between various groups

of States.” Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 433-434

(2d Cir. 2001) (quoting Maria Frankowska, The Vienna Convention on the

Law of Treaties Before United States Courts, 28 Va. J. Int’l L. 281, 361-362

(1988)).

1]

stand-alone agreement, also becomes a party to the Original

Warsaw Convention with respect to States that are parties

only to the Original Convention. The most natural reading of

that Article, however, is that a State that is not inde-

pendently a party to the Original Convention and adheres to

the Protocol (such as South Korea) “become[s] party only to

the Convention as amended, not to the unamended version

as well.” Gardiner, supra, 47 Int’l & Comp. L.Q. at 283. See

also Richard Gardiner, Carriage by Air in the U.S. Court of

Appeals, 1988 Lloyd’s Mar. & Com. L.Q. 151; Bin Cheng,

What is Wrong with the 1975 Montreal Additional Protocol

No.3?, 14 Air Law 220, 223 & n.4 (1989). That is the most

natural reading, in our view, because it gives force to the

words “as amended by this Protocol.” Hague Protocol, art.

XXIII(2); see Gardiner, supra, 47 Int’] and Comp. L.Q. at

286. The express reference to the Convention “as amended

by this Protocol” and the absence of any reference to the

unamended Convention together support reading Article

XXIII(2) to mean that a State that adheres to the Protocol

does not on that basis alone become a party to the un-

amended Convention. Cf. United States v. Erika, Inc., 456

US. 201, 208 (1982). Under that reading, South Korea does

not have a treaty relationship with the United States under

the Original Convention.

We are not prepared to say that the reading that we

advance is the only possible one. Some commentators have

given Article XXIII(2) a different reading, under which ad-

herence to the Hague Protocol puts a State that has not ad-

hered independently to the Original Warsaw Convention on

the same footing as a State that has adhered to both the

Original Convention and the Protocol. If Article XXIII(2)

had that meaning, then a State that has adhered to the

Protocol (such as South Korea) would have a treaty relation-

ship under the Original Convention with a State (such as the

United States) that has adhered only to the Original Con-

vention. See, e.g., Elmar Giemulla et al., Warsaw Con-

12

vention 24 (1992); Lawrence B. Goldhirsch, The Warsaw

Convention Annotated: A Legal Handbook 12 (1988); Rene

H. Mankiewiez, The Liability Regime of the International

Air Carrier 3 (1981).

This Court’s precedent, however, establishes that courts

must give effect to the most natural reading of a treaty

unless secondary indicia (such as the drafting history) clearly

establish that an alternative reading is a correct one. See

Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 134 n.5 (1989)

(“Even if the text were less clear, its most natural meaning

could properly be contradicted only by clear drafting his-

tory.”). That approach to treaty interpretation is mandated

by the separation of powers: “to alter, amend, or add to any

treaty, by inserting any clause, whether small or great,

important or trivial, would be on [the courts’] part an

usurpation of power, and not an exercise of judicial func-

tions.” The Amiable Isabella, 19 U.S. (6 Wheat.) 1, 71 (1821)

(Story, J.)."°

0 In the court of appeals, petitioner argued (Pet. App. 18a-19a) that

South Korea should be deemed a party to the Original Warsaw Con-

vention by virtue of Article 40(5)(b) of the Vienna Convention on the Law

of Treaties, May 23, 1969 (Vienna Convention), 1155 U.N.T.S. 331. That

provision states that “[a]ny State which becomes a party to [a] treaty

after the entry into force of [an] amending agreement shall, failing an

expression of a different intention by that State, * * * be considered as a

party to the unamended treaty in relation to any party to the treaty not

bound by the amending agreement.” Vienna Convention, art. 40(5)(b).

Petitioner's argument is incorrect for several reasons. First, the Vienna

Convention (to which South Korea is a party but the United States is not)

does not govern interpretation of the Hague Protocol. The Vienna Con-

vention did not enter into force until 1980, and it provides that the rules it

contains, unless they would apply under international law independently

of the Convention, apply only to treaties concluded after the Convention's

entry into force. Vienna Convention, art. 4. The rule in Article 40(5)(b)

would not apply independently because it was a newly-formulated rule

and thus was not existing law at the time that the Hague Protocol was

adopted. See Report of the International Law Commission on its Eight-

13

We have found nothing in the drafting history of the

Hague Protocol that suggests that Article XXIII(2) was

intended to mean that a State that adheres only to the Pro-

tocol necessarily also becomes a party to the Original

Warsaw Convention. Nor does the “postratification under-

standing of the contracting parties” (Hl Al, 525 U.S. at 167)

support such a reading of Article XXIII(2). Rather, it

suggests that the contrary, more natural reading is the cor-

rect one.

It has been the understanding of the Executive Branch of

the United States that a State’s adherence to the Hague

Protocol does not make the adhering State a party to the

Original Warsaw Convention. See Hyosung, 624 F. Supp. at

729 (noting State Department’s view that South “Korea has

not adhered to the Convention in its unamended form”);

Civil Aeronautics Board, Aeronautical Statutes and Related

Material 512 n.2 (1974) (stating that the “United States is

not in treaty relations under the Convention with any

[States that have adhered only to the Hague Protocol (such

as South] Korea), since they are parties to the Convention

only as amended”).'' The State Department’s annual

eenth Session 4 May-19 July 1966, part 1V, commentary (13). Second,

Article 40(5)(b) applies only when the treaty itself does not address the

status of States that join after amendment. See ibid.; Vienna Convention,

art. 40(5)(b) (“failing an expression of a different intention”). And, as we

have explained, Article XXIII(2) of the Hague Protocol, read most

naturally, provides that such States will be bound only by the Convention

as ainended by the Protocol.

11 A 1991 letter signed by the Department of State’s Assistant Legal

Adviser for Treaty Affairs noted that “Singapore is a party to the Warsaw

Convention by reason of its adherence on November §, 1967 to the Hague

Protocol of 1955, which amends the Convention.” Letter from Robert E.

Dalton to David M. Salentine (Oct. 10, 1991). The letter went on to state

that “Article XXI of the Hague Protocol states that ratification of the

Protocol by any state which is not a party to the Convention shall have the

effect of adherence to the Convention, as amended by the Protocol.” Ibid.

(emphasis added). (In fact, according to status lists prepared by the

14

publication Treaties in Force has consistently indicated that

South Korea is not a party to the Original Warsaw Con-

vention.” Although Treaties in Force is not intended to be a

statement of the Executive Branch’s official position on

treaty interpretation, see Treaties in Force, supra, at i, the

Executive Branch agrees that the United States is not in

treaty relations under the Original Warsaw Convention with

States that have adhered only to the Hague Protocol. That

view is entitled to “great weight” and “respect.” El Al, 525

U.S. at 168; Sumitomo Shoji Am., Inc. v. Avagliano, 457

U.S. 176, 184-185 (1982).""

International Civil Aviation Organization (ICAQ) based on information

provided by the Government of Poland, Singapore was a party to the

Original Warsaw Convention in 1991 because it had independently ad-

hered to that Convention on April 9, 1971.) To the extent the view in the

1991 letter is inconsistent with the view described in the text above. the

State Department no longer adheres to the view in the letter.

2 Before 1986, Treaties in Force did not list South Korea in any fashion

among the countries that are party to the Warsaw Convention. See, ¢.g.,

U.S. Dep't of State, Treaties in Force 207-208 (1982). Beginning in 1986, in

acknowledgment of the decisions in Hyosung and In re Korean Air Lines

Disaster of September 1, 1983, the annual Treaties in Force reports have

listed South Korea in a footnote to the list of parties to the Warsaw Conv-

ention. That footnote, however, makes clear the State Department's view

that South Korea and other countries that have adhered only to the Hague

Protocol “are parties to the [Warsaw] convention as amended; the United

States is not a party to the amending protocol.” Treaties in Force, supra,

at 344 n.1.

8 That view is apparently shared by the Government of Poland, the

official depositary for both the Original Warsaw Convention and the

Hague Protocol, as well as by the Legal Bureau of ICAO. See Letter from

Dr. Ludwig Weber, Director, Legal Bureau, ICAO, to David Shapiro,

Alternate Representative of the United States on the Council of ICAO

(May 17, 2001). Although the views of the Legal Bureau of ICAO are not

dispositive, the International Conference on Air Law at which the Hague

Protocol was adopted was convened under the auspices of the ICAO, the

international organization charged with oversight of the development of

international civil aviation. See generally Convention on International

15 sith

South Korea also does not consider itself to be a party to

the Original Warsaw Convention. To our knowledge, South

Korea expressed no understanding when it adhered to the

Hague Protocol or at any time thereafter that its adherence

to the Protocol made it a party to the Original Convention in

its unamended form. To the contrary, in 1984, South Korea

issued a letter indicating that this was not its understanding

of its status. Br. in Opp. App. 2a-3a."4

b. In 1986, the South Korean Supreme Court held that

the United States and South Korea were ina treaty relation-

ship under the Hague Protocol (rather than the Original

Warsaw Convention). See Hyundai Marine & Fire Ins. v.

Korean Air Lines (Korea S. Ct. July 22, 1986) (described in

Gardiner, supra, 47 Int’! & Comp. L.Q. at 287; Tae Hee Lee,

The Current Status of the Warsaw Convention and Sub-

sequent Protocols in Leading Asian Countries, 11 Air Law

242, 243 (1986)). The Korean Supreme Court relied on the

theory that a “State which is a party only to the [Original]

Warsaw Convention can be regarded also as a party to the

Hague Protocol considering the statement in Article 19 of

the Protocol that the Convention and the Protocol should be

read and interpreted together as one single instrument.”

Gardiner, supra, 47 Int’l & Comp. L.Q. at 287; Tae Hee Lee,

supra, 11 Air Law at 243.

Civil Aviation, 7 Dec. 1944. The same view was endorsed by Lord Jauncey

of Tullichettle in Holmes v. Bangladesh Bimani Corp., 87 1.L.R. 365, 387

(Eng. H.L. 1989) (“carriage from the territory of a state which is a party

only to one Convention to the territory of a state which is a party only to

the other is not covered by the rules of either Convention”).

4 The letter takes the position, adopted by the district courts in

Hyosung and In re Korean Air Lines Disaster of September 1, 1983, that

South Korea and the United States are in treaty relations under a

truncated version of the Original Warsaw Convention that includes. only

those provisions of the Original Convention that were not amended by the

Hague Protocol. Br. in Opp. App. 3a. As we explain at pp. 16-17, infra,

that view is untenable.

16

That theory is plainly incorrect. It is not supported by the

text of Article XIX of the Hague Protocol, which, by its

terms, applies only “[als between the Parties to this Pro-

tocol.” Hague Protocol, art. XIX. Article XIX thus does not

bind a State that has not adhered to the Protocol to the

terms of the Protocol. Indeed, Article XIX could not be read

to make a State that has not ratified or otherwise adhered to

the Protocol a party to the Protocol because that would

“infringe|| the principle that States are bound only by

treaties to which they have consented.” Gardiner, supra, 47

Int'l & Comp. L.Q. at 287.

ce. The court of appeals also properly rejected respon-

dent’s contention (Br. in Opp. 7), which was accepted by the

district court, that the United States and South Korea were

both parties to a “Truncated Warsaw Convention”—a sup-

posed agreement comprised of those provisions of the

Original Warsaw Convention that were not amended by the

Hague Protocol. See Pet. App. 20a-30a. Although two other

district courts have also reached that conclusion, Hyosung,

624 F. Supp. at 727; In re Korean Air Lines Disaster of

September 1, 1983, 664 F. Supp. at 1469, it is incorrect.

As the court of appeals explained, “[e]ven if it could be

said that South Korea agreed to be bound by a subset of the

Original Warsaw Convention when it adhered to the Hague

Protocol, the United States did not agree to be bound by

that same subset of provisions when it ratified the Original

Warsaw Convention.” Pet. App. 23a-24a. “The Original

Warsaw Convention does not provide for partial adherence

and the United States has not consented to partial adherence

by any State, including South Korea.” Jd. at 24a. The

Original Convention was a “compromise between the

interests of air carriers and their customers worldwide.” El

Al, 525 U.S. at 170. Holding the United States bound to a

judicially-created treaty that contains some features of that

compromise (such as the limited liability in Article 22(2))

without other features (such as the detailed disclosure re-

17

quirements in Article 8) would improperly rewrite the com-

promise to which the United States agreed. That course

cannot be squared with the Constitution’s requirements for

treaty-making. See Pet. App. 30a (“[I]t is not for the

judiciary to alter, amend, or create an agreement between

the United States and other States.”).

2. The question whether a country that has adhered only

to the Original Warsaw Convention (such as the United

States as of 1995) has a treaty relationship with a country

that has adhered only to the Hague Protocol (such as South

Korea) does not warrant this Court’s review. There is no

conflict among the courts of appeals on that question. More-

over, the issue is not likely to recur frequently. According to

status lists prepared on May 17, 2001, by the International

Civil Aviation Organization (ICAO) from information pro-

vided by the Government of Poland, only six States have

adhered only to the Hague Protocol—E] Salvador, Grenada,

Lithuania, Monaco, South Korea, and Swaziland. Moreover,

the United States is no longer a party only to the Original

Warsaw Convention. After the dispute in this case arose,

the United States also ratified Montreal Protocol No. 4,

which incorporates and amends the provisions of the War-

saw Convention as amended by the Hague Protocol. See

note 2, supra; Montreal Protocol No. 4 to Amend the Con-

vention for the Unification of Certain Rules Relating to

International Carriage by Air Signed at Warsaw on 12 Oct.

1929 as Amended by the Protocol Done at The Hague on 28

Sept. 1955, Signed at Montreal on 25 Sept. 1975, art. XV.

A substantial number of air travel liability disputes will

now be governed by Montreal Protocol No.-4, to which 51

States have adhered, as of May 17, 2001, according to ICAO’s

status list. The terms of Montreal Protocol No. 4 apply when

“the places of departure and destination * * * are situated

either in the territories of two Parties to th{at] Protocol or

within the territory of a single Party to th{at] Protocol with

an agreed stopping place in the territory of another State.”

18

Montreal Protocol No. 4, art. XIV. “[T]he places of de-

parture and destination” for round trips—a very common

form of international air travel for passengers—are con-

sidered to be the same place. Thus, if a passenger buys a

round-trip ticket to any country from the United States or

one of the 50 other States that have adhered to Montreal

Protocol No. 4, that protocol will govern liability arising from

that trip whether or not the other country has adhered to

that protocol.'°

The Original Warsaw Convention and the Hague Protocol

each contains provisions parallel to Article XIV of Montreal

Protocol No. 4. See Original Warsaw Convention, art. 1(2);

Hague Protocol, art. I. Thus, even for disputes arising be-

fore Montreal Protocol No. 4 came into force, the question of

the existence of bilateral treaty relations affects the appli-

cability of the Original Warsaw Convention and the Hague

Protocol only in the case of one-way travel. See, e.¢.,

5 Article XIX(2) of Montreal Protocol No. 4 contains similar language

to Article XXIII(2) of the Hague Protocol. The meaning of Article

XXIII(2) therefore may have some bearing on whether Article XIX(2)

means that the United States, by ratifying Montreal Protocol No. 4,

became a party to the Hague Protocol even though the United States has

never independently adhered to the Hague Protocol. The meaning

accorded Article XXIII(2) does not resolve that question, however,

because the text of Article XI X(2) of Montreal Protocol No. 4 (like that of

Article XXIII(2) of the Hague Protocol) does not in terms exclude the

possibility that a State that adheres to the protocol thereby becomes a

party to earlier agreements amended by the protocol. Interpretation of

Article XI1X(2) must therefore take into account the negotiating and

drafting history of that provision, and other appropriate indicia of its

meaning, such as the understanding of the contracting parties. The

question whether Article XIX(2) makes the United States a party to the

Hague Protocol was not considered by the Second Circuit in this case. See

’ Pet. App. 13a (explaining that Montreal Protocol No. 4 has no bearing on

this case because the instant dispute arose before that Protocol came into

force for the United States). This case is therefore not an appropriate

vehicle to address that question, which the court of appeals subsequently

discussed in Fujitsu. See 247 F.3d at 431.

19

Alexander v. Pan American World Airways, Inc., 757 F.2d

362, 363 (D.C. Cir. 1985); see also Br. in Opp. 9.

Moreover, a new stand-alone agreement that would re-

place the entire Warsaw liability regime was concluded in

1999 and is currently before the United States Senate for its

advice and consent. See Convention for the Unification of

Certain Rules for International Carriage by Air, Done at

Montreal, May 28, 1999 (1999 Montreal Convention), S.

Treaty Doe. No. 45, 106th Cong., 2d Sess. (2000). The 1999

Montreal Convention, would, if it becomes applicable, prevail

over the rules established under the Original Warsaw Con-

vention and all amending protocols, and become the unified

liability regime for all international civil air transportation.

Finally, even if the question presented by the petition

might warrant review by this Court at some point, this case

is not an appropriate vehicle to address it. The case is

interlocutory: the court of appeals remanded for the district

court to consider whether there is diversity jurisdiction. See

p. 7 & note 3, supra. Moreover, acceptance of petitioner’s

theory that the United States and South Korea were in a

treaty relationship under the Original Warsaw Convention

would not affect the ultimate issue of respondent’s liability.

Respondent would face unlimited liability whether (as we

and the court of appeals believe) no treaty applies or (as

petitioner contends) the Original Warsaw Convention ap-

plies, because respondent did not comply with Article 8(c) of

the Original Convention, which is a prerequisite to applica-

tion of the liability limitation in Article 22(2). Original War-

saw Convention, art. 9.

20

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

BARBARA D. UNDERWOOD

WILLIAM H. TAFTIV Acting Solicitor General

eam em "I STUART E. SCHIFFER

en ene Acting Assistant Attorney

ROSALIND A. KNAPP. - General

Acting General Counsel EDWIN S. KNEEDLER

Department of Transportation Deputy Solicitor General

MATTHEW D. ROBERTS

Assistant to the Solicitor

General

MICHAEL JAY SINGER

ROBERT M. LOEB

Altorneys

JUNE 2001