Opposition Brief — Federal Express Corp. v. Fujitsu Ltd.

AUG 17 200!

No. 01-112

FICE #5 CLEP

ee =

IN THE

Supreme Court of the United States

FEDERAL EXPRESS CORPORATION,

Petitioner,

v.

FUJITSU LIMITED,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION

WILLIAM R. Connor III

Counsel of Record

J. Scott SCHERBAN

BIGHAM ENGLAR JONES

& HOUSTON

Attorneys for Respondent

_ 40 Wall Street

New York, New York 10005

(212) 269-5500

108757 cr

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

i

STATEMENT PURSUANT TO RULE 29.6

Respondent, Fujitsu Limited, has no parent company and

is a publicly traded stock corporation, shares of which are

traded on the Tokyo Exchange.

il

TABLE OF CONTENTS

Statement Pursuant to Rule 29.6 ...............

Table OF CAMO o.6ondk oid eee

Counter Statement of the Case ...... eesvesaweua

Reasons for Denying the Writ .................

I. Certiorari should be denied because the

outcome of this case will not change even if

this Court were to accept either or both of

petitioner’s arguments that the Hague

Protocol rather than the Warsaw Convention

is the controlling law applicable to this

shipment or that the shipment was a “return”.

II. Certiorari should be denied because there has

never been an “abatement” of Warsaw. ....

CSch oc ko on ck he ee ee

Page

SIE cat alien et Sl ITE

———————L——

ill

TABLE OF CITED AUTHORITIES

Cases:

Buonocore v. Trans World Airlines, Inc., 900 F.2d

8 (2d Cir. 1990) .......- eee eee e seer eccee:

Chan v. Korean Airlines, Ltd., 490 U.S. 122 (1989)

es ks ee ee ee Ce CS OSES ERENT

Fujitsu Limited v. Federal Express Corporation, 247

F.3d 423 (2d Cir. 2000) .....-----e seer erees

Haver v. Yaker, 76 U.S. 32 (1869) .......----0--

Hertz v. Woodman, 218 U.S. 205 (1910) ........-

The Schooner Peggy, 5 U.S. 103 (1801) ....-----

United States v. City of Kodiak, 132 F. Supp. 574

(D. Alaska 1955) .....----sseeeesereeeeceee

Page

iv

Cited Authorities

Page

Treaties and Other Authoritiy:

Warsaw Convention: 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,

T.S. No. 876 (1934) reprinted in 49 U.S.C.

Eo errr rr rrr rrr rrr passim

The Hague Protocol of 1955: Protocol to Amend the

Convention for the Unification of Certain Rules

Relating to International Carriage by Air, signed at

Warsaw on 12 October 1929, done at The Hague,

Sept. 28, 1955, 478 U.N.T.S. 371 .......62.. passim

Montreal Protocol No. 4 of 1975: Montreal Protocol

No. 4 to Amend the Convention for the Unification

of Certain Rules Relating to International Carriage

by Air, signed atWarsaw on October 12, 1929, as

amended by the Protocol done at The Hague on

September 28, 1955, Sept. 25, 1975, TIAS

No. _, reprinted in, ICAO DOC. NO. 9148

Cee i hae nana Ocsaeekdee see tenadneewuns passim

Second International Conference on Private

Aeronautical Law Minutes, Warsaw, 1929,

(translated by Horner and Legrez), Rothman, 1975

1

COUNTER STATEMENT OF THE CASE

FedEx has filed its petition for Certiorari in its continuing

attempt to avail itself of the limitation of liability of 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, T.S. No. 876

(1934), reprinted at 49 U.S.C. § 40105 note (1994), known

and commonly referred to as the Warsaw Convention, for

the damage sustained to goods (silicon wafers) during their

transportation by air from Austin, Texas to Tokyo, Japan.

The transportation took place in May of 1996. At that

time, both the United States and Japan were high contracting

parties to the Warsaw Convention.

At that time, Japan was also a signatory to a 1955

amendment to that Convention known as The Hague Protocol

of 1955. Protocol to Amend the Convention for the

Unification of Certain Rules Relating to International

Carriage by Air, signed at Warsaw on 12 October 1929, done

at the Hague, Sept. 28, 1955, 478 U.N.T.S. 371. By ratifying

Montreal Protocol No. 4 of 1975, Montreal Protocol No. 4

to Amend the Convention for the Unification of Certain Rules

Relating to International Carriage by Air, signed at-Warsaw

on October 12, 1929, as amended by the Protocol done at

The Hague on September 28, 1955, Sept. 25, 1975, TIAS

No. ___, reprinted in, ICAO Doc. No. 9148 (1975), the

United States also acceded to the Hague Protocol.

No separate airway bill was issued for the transportation

by air of the shipment from Austin to Tokyo until the

shipment had arrived at the FedEx distribution center in

Memphis.

2

FedEx does not dispute that it carried these goods by air

from Austin, Texas to Tokyo, Japan and that this was

“international transportation” between two “high contracting

parties.”

FedEx contends that it could avail itself of the limitation

if either: (1) the Courts below characterized the shipment as

a “return” or (2) if the Hague Protocol rather than the Warsaw

Convention is the controlling law.

The petition should be denied since the result does not

change even if FedEx prevails on either or both of these

points.

REASONS FOR DENYING THE WRIT

I. Certiorari should be denied because the outcome of

this case will not change even if this Court were to

accept either or both of petitioner’s arguments that

the Hague Protocol rather than the Warsaw

Convention is the controlling law applicable to this

shipment or that the shipment was a “return”.

Both the Warsaw Convention and The Hague Protocol

provide that for the air carrier to avail itself of the limitation

of liability under Article 22(2) in regard to the carriage of

goods by air, the shipment must have had an air waybill

meeting certain minimum requirements. No “exception” in

this regard is found anywhere in either treaty as regards

“types” of shipments, such as collect shipments, return

shipments or fully prepaid shipments. Nevertheless FedEx

asks this Court to engrave on the treaties at least one such

exception, i.e., “the return.”

3

With apologies to Gertrude Stein the fact is that under

either treaty, “a return is always a carriage of goods by air

but every carriage of goods by air is not always a return.”

Specifically, in regard to the facts of this case, the

applicable provision of Warsaw is Article 9 that provides:

If the carrier accepts goods without an airway bill

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.

In Chan v. Korean Airlines, Ltd., 490 U.S. 122 (1989),

we are instructed that any interpretation of the Convention

must begin with the literal language of the treaty.

See Buonocore v. Trans World Airlines, Inc., 900 F.2d 8, 9

(2d Cir. 1990).

The “literal language” of Article 9 contains no

exceptions. Thus, whether the shipment is characterized as

a return or otherwise, absent a timely air waybill with the

required particulars, the air carrier, which accepts a shipment

to travel between two high contracting parties to Warsaw,

can not avail itself of the limitation. Here, FedEx accepted

the goods for transportation from Austin to Tokyo upon

receipt of written instructions and a written guarantee of

payment. There simply was no air waybill.

4

For those countries adhering to The Hague Protocol,

Article VII of the Protocol deleted and replaced the Warsaw

language of Article 9 with the following language:

If, with the consent of the carrier, cargo is loaded

on board the aircraft without an air waybill having

been made out, or if the air waybill does not

include the notice required by Article 8, paragraph

(c), the carrier shall not be entitled to avail himself

of the provisions of Article 22, paragraph 2.

The “literal language” of the Hague Protocol contains

no exceptions. There is no question that the air waybill for

the carriage of these goods by air from Austin to Tokyo was

not created until the shipment had “with the consent of the

carrier,” been loaded, left Austin and arrived in Memphis.

Although it is clear that the Second Circuit correctly

applied the terms of the Warsaw Convention to this case, it

even went on to state in its opinion that:

We do, however, note our view that FedEx would

not prevail even under the terms of the Amended

Warsaw Convention. Upon its acceptance of the

goods for shipment in Austin, FedEx permitted

those goods to be loaded onto the aircraft for

shipment without a new air waybill, apparently

in violation of the requirements of even the

amended version of Article 9.

Fujitsu Limited v. Federal Express Corporation, 247 F.3d

423, 434 (2d Cir. 2000).

5

Thus, whether this action is controlled by Warsaw, as

found by the Courts below, or if it is controlled by the Hague

Protocol, as contended by FedEx, the result will be the same.

FedEx simply cannot avail itself of the limitation of liability

because no air waybill was prepared before the goods left

Austin.

FedEx also suggests that this Court should make a

finding de novo that the shipment was a “return” for which

no air waybill was required. Even assuming that this position

of FedEx is accepted, the result is the same for the reasons

stated. The “literal language” of both Warsaw and the

Hague Protocol contains no such exception.

Finally FedEx contends that no air waybill for “a return”

is required because of Article 12(1) of Warsaw. There is no

such exception in Article 12 or anywhere else in the

Convention and, as Petitioner notes, this Article was not

amended by Hague.

Under Article 12(1), at any time before delivery to the

consignee, the consignor can call upon the carrier to make

another disposition of the shipment. There are only two

caveats; the consignor must not “prejudice” the carrier and

he (the consignor) must “repay any expenses.”

Neither of these caveats either conflicts with nor obviates

the requirement of Article 9. The position is further supported

by Article 33:

Nothing contained in this Convention shall

prevent the carrier * * * from refusing to enter

into any contract of transportation * * *.

6

Indeed, in presenting Article 12 to the Convention Delegates,

Henry De Vos, the Reporter of the International Technical

Committee of Aeronautical Legal Exports, wrote:

However it seemed opportune to remind one at

the end of the Convention that all these Provisions

left entirely intact the right of all carriers to refuse

to accept any carriage whatsoever.’

Thus, just as FedEx required both written instructions and a

guarantee of payment before it would move the shipment,

if FedEx wanted to avail itself of the limitation of liability

under Article 22, it could have also required a correct air

waybill. FedEx also could have refused to move the goods

until it had received, or, as it eventually did itself, prepared

the air waybill.

Il. Certiorari should be denied because there has never

been an “abatement” of Warsaw.

Petitioner argues at great length that Warsaw was

“abated” before trial by reason of the adoption of Montreal

Protocol 4 by which the United States acceded to the Hague

Protocol. This position is logically and legally incorrect.

At no point does petitioner put any limitations on its

“abatement” theory. Logically, if Warsaw was “abated”,

does that mean that the United States is no longer a

“High Contracting Party” to Warsaw? Are countries that have

only signed Warsaw, but not Hague, and which were in a

1. Second International Conference on Private Aeronautical

Law Minutes, Warsaw, 1929, (translated by Horner and Legrez),

Rothman, 1975 at page 251

7

treaty relationship with the United States now no longer in

such a treaty relationship? Approximately 135 countries

ratified or are adherents to the Warsaw Convention.

Approximately 50 countries had ratified or adhered to Hague

prior to Montreal Protocol 4. Approximately eight countries

have signed Hague but not Warsaw. Approximately 51

countries have signed Montreal Protocol 4. There are

countries included which have ratified more than one of the

documents.

Until March 4, 1999 the United States was in a treaty

relationship with each of some 134 other countries.

The petitioner now would assert that those “relationships”

were “abated.” The alternative would be that the United

States is now only a “High Contracting Party” to and in treaty

relationship only with those 51 countries which themselves

have acceded to Hague as amended by Montreal Protocol 4.

The bald assertion that Warsaw was “abated” is simply

illogical.

Warsaw, the Hague Protocol, and Montreal Protocol 4

all regulate the private rights of air carriers and shippers but

only as regards shipments which are between countries which

are signatories. Neither the original convention nor either of

the amending protocols regulate or affect the relations

between any of the signatory nations. There simply is nothing

in Hague or Montreal Protocol 4 to suggest that this is the

proper result intended by either of these amendments.

Petitioner relies on Hertz v. Woodman, 218 U.S. 205

(1910) and The Schooner Peggy, 5 U.S. 103 (1801), both of

which are inapposite.

8

In Hertz, supra, the issue was whether the repeal of an

estate tax, passed to fund the Spanish-American War, was

prospective or retroactive. No treaty was involved. The Court

ultimately held that even though the tax was repealed before

the due date, it was fixed and payable.

In The Schooner Peggy, the issue was whether a treaty

ending a war and containing a provision requiring the return

of a prize that had not been “definitively condemned”

nullified a proceeding pending on appeal. As Mr. Chief

Justice Marshall concluded,

It is true, that in mere private cases between

individuals, a court will and ought to struggle

hard against a construction which will, by a

retrospective operation, affect the rights of parties,

but in great national concerns. . . the court must

decide according to existing laws, and if it be

necessary to set aside a judgment, rightful when

rendered, but which cannot be affirmed, but in

violation of law, the judgment must be set aside.

The Schooner Peggy, supra, at page 110.

Since whether or not FedEx is able to avail itself of a

limitation of liability in this case does not appear to be of

“great national concern,“ petitioner’s principal citation seems

to stand for just the opposite proposition than which it was

cited.

As suggested by the cited language from the opinion in

The Schooner Peggy, supra, the appropriate legal authority

on this issue in regards to treaties and in accord with

The Schooner Peggy is Haver v. Yaker, 76 U.S. 32 (1869),

9

where this court succinctly addressed the issue of the

retroactivity of a treaty. Two principals were enunciated:

1. ** * as respects the rights of either

government under it, a treaty is considered as

concluded and binding from the date of its

signature. In this regard the exchange of

ratifications has a retroactive effect,

confirming the treaty from its date.

2. But a different rule prevails where the treaty

operates on individual rights. The principle of

relation does not apply to rights of this

character, which were vested before the treaty

was ratified. In so far as it effects them, it is

not considered as concluded until there is an

exchange of ratifications, * * * *

Haver, supra, at page 34.

The issue here only concerns the private right of FedEx

to avail itself of the limitation of liability. Thus, where as

here, the Hague Protocol through Montreal Protocol 4

expressly did not “come into force” until well after the

shipment in question, the amendments to the treaty are given

no retroactive effect as to private rights. See, e.g., 87 C.J.S.,

Sec. 14, cited in United States v. City of Kodiak, 132 F. Supp.

574 (D. Alaska 1955).

As demonstrated, petitioner’s theory of “abatement” has

no foundation in logic or law.

10

CONCLUSION

Based on the foregoing, Petitioner has set forth no basis

for this court to grant Certiorari.

Respectfully submitted,

WILLIAM R. Connor III

Counsel of Record

J. Scott SCHERBAN

BIGHAM ENGLAR JONES

& Houston

Attorneys for Respondent

40 Wall Street

New York, New York 10005

(212) 269-5500