Petition for Writ of Certiorari — Mbaba v. Societe Air Air France (No. 06-566)
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EDO GEORGE MBABA AND
PATIENCE MBABA,
Petitioners,
SOCIETE AIR FRANCE.
Respondent.
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Fifth Circuit
PETITION FOR WRIT OF CERTIORARI
JEFFREY L. DORRELL
THE LAW OFFICES OF JEFFREY LL. DORRELL, P.C.
3303 Louisiana, Suite 150
Houston. Texas 77006-6616
Telephone: 713-807-1188
Counsel for Petitroners
QUESTIONS PRESENTED FOR REVIEW
Issue 1: Whether the Warsaw Convention, a treaty
of the United States, precludes any recovery for an
international airline passenger’s state law breach-of-
contract claims when the airline charged $4,048.66 more
than the $520.00 contracted for to transport four excess
bags.
CORPORATE AFFILIATIONS
(1) Respondent Societe Air France is an “agency or
instrumentality of a foreign state” within the meaning of
28 U.S.C. § 1603 because a majority of its shares are, and
have been at all relevant times, owned by the Government
of France.
(2) Societe Air France’s subsidiaries and known
affiliates are:
Air Charter
Group Jet Tours
Go Voyages
Groupe Servair
Air Inter
EuroBerlin
Ecole de Pilotage Amaury de la Grange
REVIMA
CRMA
Esterel
Sodetair
Societe Immobiliere Aeroportuaire
GIE Amadeus France
SODEXI
Groupe Air France Finance
FINACTA
TABLE OF CONTENTS
Page
Fe eC MIE AY cicreincininidesavnndincinegantioubebineanepbasiiebuanais 1
FOF TTT hicitiunsciccrstinintiniseisigisddaaiiapeoinaie civaainaaie 1
TREATY PROVISIONS INVOLVED................ccceceeseeees 1
STATEMENT OF THE CASE ............seccccossesesereceeseeesees 3
Pin i icct ivicinwstbiiiveiiviniinieicrseinnataieneiaiaien 3
SD. FRCCOIEIIE NING aici sceicccosecasesinatiininvexonccanvaveivnin 4
REASONS FOR GRANTING THE PETITION............. 5
{. CERTIORARI SHOULD BE GRANTED TO
RESOLVE A CONFLICT AMONG THE
CIRCUIT COURTS OF APPEALS AND TO
CLARIFY THE MEANING AND APPLICATION
CIF Fe RIOR Bi verscaccnnbccncneiltriankasianvesanitbiathsinpltiguce 9
A. The Circuits Are Split on the Issue
of Broad Preemption by the Warsaw
CII sicesiikcsunicbsconagorterniclinnchonetsdsimntis 10
B. The Courts Below Misplaced Their Reliance
on Montreal Protocol No. 4’s Change in
PAN CIE TOD Siac ncsicnsicisveicinatiacesontbnkeaaabaiiions 13
C. The Courts Below Misread Tseng............... 14
Il. THE DECISION BELOW CANNOT BE
RECONCILED WITH THE VIEW OF THE
COURT OF LAST RESORT OF A SISTER
SIGNATORY- THAT THE TREATY WAS
INTENDED TO UNIFY ONLY “CERTAIN”
RULES — NOT ALL RULES. ...........ccccccosccsscoveceee 17
Ne heciicitvenctonciniccesaisheibetieeitinbiainenssssianimacineth 18
PEN icine brinctlinnintetnivntepucsentcimabveamaamapiaaatelin 19
TABLE OF AUTHORITIES
Page
CASES:
Abramson v. Japan Airlines Co., Ltd., 739 F.2d
130 (3d Cir. 1984)............. Tea Ag CE a SR §, 11, 14
Air France v. Saks, 470 U.S. 392 (1985)............... 9,14, 17
Chan v. Korean Air Lines, 490 U.S. 122 (1989) ....7, 9, 14
Eastern Air Lines v. Floyd, 499 U.S. 530 (1991)........ 5, 9
El Al israel Ltd. v. Tseng, 525 U.S. 155 (1999) .....passim
Floyd v. Eastern Airlines, 872 F.2d 1462 (11th
Cir. 1989), rev’d on cther grounds, 499 U.S. 530
Ce ciiuiditareboeiiiinndoscnss sisadiensoeiamaanatpaieaiia 9, 11, 14, 15, 16
Hernandez v. Air France, 545 F.2d 279 (1st Cir.
1976), cert. denied, 430 U.S. 950 (1977) ...... eee ee eee 11,14
Imtiaz v. Emery Air Freight, Inc., 728 S.W.2d
897 (Tex. App. — Houston [lst Dist.] 1987, no
NN ciccastsstaseletnieiehadisiaaenbasineaiitaucihicdaainiadannicabonaadpiabhemmmidauidecae 12
King v. American Airlines, inc., 146 F.Supp. 2d
ee Es EE cchtsica sescucieans nonce aididiecninestantirsaimbesnen 12
King v. American Airlines, Inc., 284 F.3d 352
iii pekigsih alah sicgs ied incticcacreab dented caches 12
Motorola, Inc. v. Fed. Express Corp., 308 F.3d
995 (9th Cir. 2002), cert. denied, Kuehne &
Nagel v. Motorola, Inc. , 538 U.S. 1068 (2003)............ 6
Olympic Airways v. Husain, 540 U.S. 644 (2004)....9, 14
Potter v. Delta Airlines, Inc., 98 F.3d 881 (5th
CE Fe oscaids ncisleahininscealcanascdecchsabaiincgensubebasbineduietniiouies 5,14
Read-Rite Corp. v. Burlington Air Express, Ltd.,
106 F.3d 1190 (Oth. Cir. 1900) ..0..cccseseccesescesvcesveseroesevees 11
TABLE OF AUTHORITIES - Continued
Page
Tseng v. El Al Israel Airlines, Ltd., 122 F.3d
99 (2d Cir. 1997), rev'd, Tseng, 525 U.S. 155
PT adits iokeiss chives sip andatabodes vincebanceeaVehauabpotelcmesnianertee 5,17
Victoria Sales Corp. v. Emery Air Freight, Inc.,
EE Fe FO Ce AE. BO hadetcisavesticisineicandcdisicsnvebaeceass 11
Wallace v. Korean Airlines, 214 F.3d 293 (2d Cir.
MONET siisckspienicicdinsaigndcputaedetibeaauis detdededsidsubaivebaniieocamseibians 14
Wolgel v. Mexicana Airlines, 821 F.2d 442 (7th
Cir. 1987), cert. denied, 484 U.S. 987 (1987)............ 5, 10
Zicherman v. Korean Air Lines Co., 516 U.S.
EF CUED isiiscicicnceshinimoacstéauasasbidendseueaedenes haa teulias 9,14
STATUTES:
Es OF RD ocichcsvicxesesdeseocaistcioiicuasiatinetcdiviaaterieunns 1
yo LADS ak 1.” : SRR mm Rep Mpr aE ere cells en AD NCR SEMEN OF Ft 4
a Oe TO ie Fst cle eee 3
TS Es Oe BR simiiccincasacediiaseteaenmninseakanaions 3, 4
AE Gs: Ge re citncssuiccrinisiitinstessaniitibiascecaeuiaumbadaessinaniins 1
OTHER AUTHORITIES:
Convention for the Unification of Certain Rules
Relating to International Transportation by Air,
concluded at Warsaw, Poland, October 12, 1929,
49 Stat. 3000 T.\S. No. 876, 137 L.N.T.S. 11
(1934), reprinted in note following 49 U.S.C.
Oe te ARIE Fhe fensndcadics anteneivetvanalebabicaaicab nua passim
TABLE OF AUTHORITIES -— Continued
Page
on Private
Second International Conference
Aeronautical Law, October 4-12, 1929, Warsaw,
Minutes 176 (R. Horner & D. Legrez transls.
17,18
SOR OR ESET E THEE ESOS EEO EE HOPE OHHH ESET SHEESH ESESEEEEHE RETO EEE HOSES TEREEEES
SOC EOE SHES E SHEET OHHH SSH SEHSHO SCH ESS SHEE HEEESEEHETTCEE SEH HT ETE SESH EE EEE EE
193
OPINIONS BELOW
The opinion of the Court of Appeals for the Fifth Circuit
is reported at 457 F.3d 496 (5th Cir. 2006). App. 11b-25b.’
The memorandum and order of the United States
District Court for the Southern District of Texas (Atlas, J.)
granting Air France’s motion for summary judgment is not
reported. App. la-10a.
JURISDICTION
The Judgment of the U.S. Court of Appeals for the
Fifth Circuit was entered July 25, 2006. The jurisdiction of
the Court is invoked under 28 U.S.C. § 1254(1).
TREATY PROVISIONS INVOLVED
The articles of thé treaty known as the Warsaw
Convention’ involved are Articles 1, 17, and 24.
Article 1(1) of Chapter I, “Scope-Definitions,” provides:
¢ (1) This convention shall apply to all
international transportation of persons, baggage,
or goods performed by aircraft for hire. . ..
Article 17 of Chapter III, “Liability of the Carrier,”
provides:
e The carrier shall be liable for damage sustained
in the event of the death- or wounding of a
passenger or any other bodily injury suffered by
a passenger, if the accident which caused the
damage so sustained took place on board the
aircraft or in the course of any of the operations
of embarking or disembarking.
* References to the Appendix are indicated as App. ___a.
* Convention for the Unification of Certain Rules Relating to
International Transportation by Air, concluded at Warsaw, Poland,
October 12, 1929, 49 Stat. 3000 T'S. No. 876, 137 L.N.T.S. 11 (1934),
reprinted in note following 49 U.S.C. § 40105 (1997).
2
Article 24 of Chapter III, “Liability of the Carrier,” as
modified by Montreal Protocol No. 4,’ provides:
* (1) In the carriage of passengers and _
baggage, any action for damages, however
founded, can only be brought subject to the
conditions and limits set out in this
convention, without prejudice to the question
as to who are the persons who have the right
to bring suit and what are their respective
rights.
e (2) In the carriage of cargo, any action for
damages, however founded, whether under
this Convention or in contract or in tort or
otherwise, can only be brought subject to the
limits of liability set out in this Convention
without prejudice to the question as to who
are the persons who have the right to bring
suit and what are their respective rights.
Such limits of liability constitute maximum
limits and may not be exceeded whatever
the circumstances which gave rise to the
liability.’
* Montreal Protocol No. 4 was ratified by the Senate on September
28, 1998, and went into effect on March 4, 1999. Tseng, 525 U.S. 174.
* The prior version of Article 24 — before Montreal Protocol No. 4 —
provided:
(1) In the cases covered by Articles 18 and 19 any
action for damages, however founded, can only
be brought subject to the conditions and limits
set out in this convention.
(2) In the cases covered by Article 17 the provisions
of the preceding paragraph also apply, without
prejudice to the questions as to who are the
persons who have the right to bring suit and
what are their respective rights. 5
Tseng, 525 U.S. at 163. [Emphasis added to show language that was
changed; other words were also added.]}
3
STATEMENT OF THE CASE
Petitioners Edo George Mbaba and his wife Patience
Mbaba sued Societe Air France in the District Court of the
State of Texas, Harris County. App. 12b. They alleged breach
of contract, fraud, and violations of a Texas consumer
protection statute known as the Deceptive Trade Practices Act
arising from Air France’s charge of $4,048.66 to carry four
excess bags from Texas to Nigeria. Jd. Air France removed the
case to federal court under 28 U.S.C. §§ 1331 and 1441
because Air France is a foreign state within the meaning of 28
U.S.C. § 1603. Jd. Upon Air France’s motion for summary
judgment, the district court dismissed all of the Mbaba’s
claims as preempted by the Warsaw Convention. App. 11b.
The court of appeals affirmed.
A. Nature of the Case
Petitioner George Mbaba paid $1,167.26 for a ticket to
fly on Air France from Houston, Texas, to Lagos, Nigeria, on
June 15, 2002. App. 2a; App. 11b-12b. The flight had an
intermediate connection in Paris, France. Jd. It is undisputed
that George checked four pieces of “excess baggage” in
Houston and paid Air France’s “excess baggage” charge of
$520.00 before embarking ($130.00 per excess bag). Jd. It is
undisputed that when Air France collected the $520.00 from
George in Houston, it handed George an “excess baggage
ticket” showing the $520.00 payment and indicating that the
four bags would be transported from Houston to Lagos. Jd.
Mbaba alleges — and Air France has not disputed — that
the Air France gate agent in Paris demanded that he pay an
additional $4,048.66 for transporting the bags from Paris to
Lagos, threatening that if Mbaba did not pay, his bags would
be “taken outside and burned.” App. 2a. The parties do not
dispute that Mbaba paid the additional $4,048.66.° Id.
* George paid the $4,048.66 using Patience’s American Express
card. This is the sole reason that Patience is a party in the case at bar.
(Continued on following page)
B. Proceedings Below
Petitioners’ pleading in Texas state court sought damages
arising out of Air France’s breach of a contract to transport the
excess bags to Nigeria for $520.00 and Air France’s fraud and
deceptive trade practices in inducing George Mbaba to enter
that contract. App. 12b. Mbaba alleged that Air France’s fraud
and deceptive trade practices were committed when he
checked in for his international flight in Houston. He alleged
that Air France breached the contract when he checked in for
his connecting flight to Nigeria in Paris, France.
Mbaba’s pleadings do not refer to the Warsaw Convention
or assert any rights thereunder. App. 12b. Mbaba did not
allege an accident, personal injury, mental anguish, delay in
his travel, or loss or damage to his bags. Jd. Mbaba sought
only the benefit of his bargain — that Air France refund the
$4,048.66 that Air France should not have charged him.
Air France removed the action to the district court on the
basis that Air France is a foreign state within the meaning of
28 U.S.C. § 1603. App. 12b. Petitioners’ motion to remand was
denied.
On March 29, 2005, the Honorable Nancy Atlas of the
United States District Court for the Southern District of Texas
granted Air France’s motion for summary judgment. App. 11b.
Judge Atlas noted that Mbaba’s claims did not fit within any
of the Convention’s substantive liability provisions, but ruled
that “the Convention is the sole source of a remedy for an
international traveler against an airline.” App. 20b-21b.
Mbaba appealed to the United States Court of Appeals for
the Fifth Circuit pursuant to 28 U.S.C. § 1291, seeking to
reverse the dismissal of his contract claims and remand to the
district court for a trial. On appeal, the Fifth Circuit affirmed
the district court’s summary judgment against Mbaba,
holding that the Convention precludes passengers from
bringing actions of any kind under local law when they cannot
establish air carrier liability under the Convention. App. 6a.
Patience was not aboard the June 15, 2002, Air France flight or present
at the Air France ticket counter in Paris.
5
REASONS FOR GRANTING THE PETITION
Certiorari should be granted to resolve a live, direct
conflict between the Fifth and Seventh Circuit Courts of
Appeals (which also touches decisions by the First, Second,
Third, Ninth, and Eleventh Circuits) as to whether the
Warsaw Convention, a treaty of the United States,
exclusively governs and precludes state law causes of
action for a passenger’s damages even if the damages were
of a nature — and sustained as a result of an event — that
the Convention does not address.
In El Al Israel Lid. v. Tseng, 525 U.S. 155 (1999),
this Court held that remedies for personal injury, which
the Warsaw Convention specifically addresses in Article
17, must be found in the Convention or they are not
available to the passenger at all. Overruling cases from
the Second’ and Third’ Circuits and resolving the conflict
between those cases and the Fifth Circuit,* this Court held
in Tseng that local law is preempted for any species of
personal injury which the Convention does not address
(such as, for example, “purely mental injuries”).
Before Tseng was decided, this Court denied
certiorari to address the preemption of contract claims in a
case that allowed those claims to proceed. See Wolgel uv,
Mexicana Airlines, 821 F.2d 442, 444 (7th Cir. 1987), cert.
denied, 484 U.S. 987 (1987). However, Montreal Protocol
No. 4 changed the language of Article 24 in 1999." The
* Tseng v. El Al Israel, Ltd., 122 F.3d 99 (2d Cir. 1997).
" Abramson v. Japan Airlines Co., Ltd., 739 F.2d 130, 134 (3d
Cir. 1984).
* Potter v. Delta Airlines, Inc. , 98 F.3d 881 (5th Cir. 1996).
* In Eastern Air Lines v. Floyd, 499 U.S. 530 (1991), the Court
held that “purely mental injuries” were not compensable under Article
17 of the Convention. However, the Court declined to decide whether
local law was available to compensate a passenger with damages only
from mental distress. (“The Court of Appeals did not address this
question fof exclusivity] and we did not grant certiorari to consider it.
We therefore decline to reach it here.”) Jd. at 553.
*° See supra, note 3.
6
courts below misread and greatly expanded Tseng ~ and
thus the preemptive scope of the treaty itself — by holding
that the treaty as amended now broadly preempts local
law even in common law breach-of-contract cases. This
holding is based on the fact that such cases do not arise
under any of provision of the Warsaw Convention.”
Conceding that Mbaba’s breach-of-contract claims “do
not fit within any of the Convention’s substantive liability
provisions, i.e., Articles 17, 18, or 19,” the district court
relied on Article 1(1) to conclude:
Nevertheless, the claims are squarely within
the preemptive scope of the Convention - the
“international transportation of persons,
baggage, or goods performed by aircraft for
hire.”
App. 21b-22b. In looking to Article 1(1) for guidance on the
Convention’s preemptive scope, the district court
disregarded both the express language of Article 24” and
this Court’s prior observations that it is A. cle 24 that
“prescribes the exclusivity of the Convention’s provisions
for air carrier liability,” not Article 1(1). See, e.g., Tseng,
525 U.S. at 167. Yet, with a single stroke, the trial court
(i) significantly expanded the Convention’s
preemptive scope;
(ii) effectively changed the word “certain” in the
official title of the Convention” to “all;” and
" The Warsaw Convention describes and defines three areas of air
carrier liability (personal injuries in Article 17; baggage or goods loss,
destruction, or damage in Article 18; and damage occasioned by delay in
Article 19). Tseng, 525 U.S. 155, 169 (1999); Motorola, Inc. v. Fed.
Express Corp., 308 F.3d 995, 998 (9th Cir. 2002), cert. denied, Kuehne
& Nagel v. Motorola, Inc., 538 U.S. 1068 (2003).
” Article 24 appears in Chapter III, captioned “Liability of the
Carrier” and states in what cases liability is limited by the Convention.
‘* The Warsaw Convention was officially entitled “Convention for
the Unification of Certain Rules Relating to International
Transportation by Air.” See 49 Stat. 3000 T.S. No. 876, 137 L.N.T.S. 11
(1934), reprinted in note to 49 U.S.C. § 40105 (1997) [emphasis added].
7
(iii) extinguished entire ~ species of claims
assertable by a passenger — whether onboard
an aircraft in international flight or, as was
Mbaba, merely attempting to enforce a
contract with the airline into which he had
entered before embarking on his journey.
The court below affirmed. Candidly acknowledging
Mbaba’s argument that the logical extent of such a holding
would be that “[a]n airline could, if it chose, even line up
passengers on an international flight and rob them at
gunpoint without fear of any civil liability to the victims
whatsoever,” the court conceded that “[rjobbery is not
prohibited by the Convention.” App. 7a [emphasis in
original]. However, the court somewhat inaccurately
characterized Mbaba’s argument as an “analogy,”
described it as “unhelpfui,” and declined to “consider other
scenarios.”” App. 9a. The. Fifth Circuit based its holding
largely on Montreal Protocol No. 4’s change in the language
of Article 24, and expressly relied on a passage from Tseng
that it believed dictated its unprecedented result:
[The Tseng court] stated that under the
amended Article 24, both parties agreed
that “(t]he treaty precludes passengers
from bringing actions under local law when
they cannot establish air carrier liability
under the treaty.”
“ An analogy is an “inference that if two or more things agree with
one another in some respects they will probably agree in others,” a
“resemblance in some particulars between things otherwise unlike,” or
a “comparison based on such resemblance.” Merriam Webster’s 11th
Collegiate Dictionary, 2006. —
’* The Fifth Circuit’s refusal to consider the logical implications of its
unprecedented construction of the Warsaw Convention’s preemptive scope
as not part of its “task” is remarkable. In construing statutes, courts often
consider the logical consequences of competing interpretations as an aid
in reaching the correct result. For example, this Court did so in
construing Article 3(2) of the Convention in Chan v. Korean Air Lines,
490 U.S. 122, 130 (1989), where the Court rejected the proposed
construction that delivering a defective ticket was equivalent to delivering
no ticket because such a construction “produces absurd results.”
~
~ 7 8
App. 6a, quoting Tseng, 525 U.S. at 175. Disregarding the
broader context of this passage and the substantial
background leading up to the Court’s decision in Tseng,
the Fifth Circuit erred in three important ways:
(i) It ignored the Convention’s__ specific
limitation of its own scope in Article 24 to
damages for deat” or personal injury, loss or
destruction of baggage, and delay;
(ii) It ignored this Court’s jurisprudence in
Tseng that the Convention’s preemptive
effect extends no further than _ the
Convention’s “own substantive scope;” and
(iii) It implicitly held that Montreal Protocol No.
4’s changes in Article 24 expand the
Convention's preemptive scope.
It is important to resolve the issue raised in this
petition because of the clear and present conflict which
exists among the Circuits. This conflict has arisen in part
as a result of the lower courts’ misreading of this Court's
decision in Tseng, but also in part because of the change
in the Convention’s language effected by Montreal Protocol
No. 4 in 1999. As the court below noted, this Court has not _
addressed the scope of the Convention’s preemption since
Montreal Protocol No. 4. App. 5a.
The issue presented by this certiorari petition
transcends the facts of this case and has universal
applicability to all claims arising out of international
transportation by air. The Fifth Circuit’s unprecedented
holding in the case at bar presages a potential flood of
litigation in which newly-emboldened international
airlines contend that the Convention permits them to
breach contracts and commit non-injury-related torts (or
even crimes) against passengers with impunity. Unless
resolved by the Court, passengers’ rights and remedies
with respect to their contracts with international air
carriers will remain unsettled. The Court should resolve
_ the exclusivity issue to ensure the clear and consistent
application of the terms of a treaty to which the United
States is a party.
9
I. CERTIORARI SHOULD BE GRANTED TO
RESOLVE A CONFLICT AMONG THE CIRCUIT
COURTS OF APPEALS AND TO CLARIFY THE
MEANING AND APPLICATION OF A TREATY
The Court has granted certiorari six times since 1985
to ensure the correct interpretation and application of the
Warsaw Convention. See Olympic Airways v. Husain, 540
U.S. 644 (2004); Tseng, 525 U.S. 155 (1999);"” Zicherman
v. Korean Air Lines Co., 516 U.S. 217 (1996); Eastern
Air Lines v. Floyd, 499 U.S. 530 (1991);* Chan v. Korean
Air Lines, 490 U.S. 122 (1989);” and Air France v. Saks,
470 U.S. 392 (1985).” This case raises a recurring,
important, and unresolved question regarding the
application of a treaty to which the United States is a party.
The Court should grant certiorari in this case to resolve a
conflict among the circuits and to clarify the preemptive
scope of the Convention in an area not addressed by this
Court since Montreal Protocol No. 4 changed the language
of Article 24 in 1999.
* The Court in Husain held that a flight attendant’s refusal to
reseat a passenger farther from the smoking section was an “accident”
under Article 17 of the Convention that caused his death.
" The Court's decision in Tseng resolved a conflict between the
Second, Third, and Fifth Circuits as to the extent of preemption of local
law by Article 17 of the Convention in cases of personal injury.
* The Court in Zicherman held that loss-of-society damages could
not be recovered ipderActicle 17 of the Convention for loss of a relative
in a plane crash on the high seas.
* The Court’s decision in Floyd resolved a conflict betweeri the
Eleventh Circuit and the New York Court of Appeals by holding that
the term “bodily injury” in Article 17 of the Convention (a translation of
the term “lesion corporelle” in the authentic French text) did not allow
recovery for “purely mental injuries.” Floyd, 499 U.S. at 553.
* The Court’s decision in Chan resolved a conflict between the
Second and Fifth Circuits and the District of Columbia Circuit as to the
correct interpretation of Article 3 of the Convention.
* The Court in Saks held that an injury resulting from a
passenger’s own internal] reaction to the normal operation of an aircraft
was not an “accident” within Article 17 of the Convention.
sty
10
A. The Circuits Are Split on the Issue of Broad
Preemption by the Warsaw Convention
The courts below held that, despite the undisputed
fact that Mbaba’s contract claim does not arise under the
Convention, it was nevertheless “squarely within the
preemptive scope of the Convention - the ‘international
transportation of persons, baggage, or goods performed by
aircraft for hire.” App. 21b-22b; App. 9b. In this respect,
the Fifth Circuit is in direct conflict with the Seventh
Circuit (in a case decided before Montreal Protocol No. 4
was adopted) as to whether a breach-of contract claim is
specifically preempted. In a case involving “bumping,” the
Seventh Circuit held that the claim was not within the
preemptive scope of the Convention because it did not
involve personal injury, baggage loss or damage, or delay
damages, and allowed the claim to proceed under local
law. Wolgel v. Mexicana Airlines, 821 F.2d 442, 444 (7th
Cir. 1987), cert. denied, 484 U.S. 987 (4987).
In Wolgel, the airline made precisely the same
argument that Air France made in the case at bar — that
“the Warsaw Convention is the (plaintiffs’] exclusive
remedy.” Wolgel, 821 F.2d at 444. Like the district court in
the case at bar, the district court in Wolgel agreed with
the airline and dismissed the passengers’ claims for breach
of contract. Jd. Unlike the Fifth Circuit in the case at bar,
the Second Circuit in Wolgel reversed, holding:
Because the [plaintiffs’] claims are for total
nonperformance of a contract, the Warsaw
Convention is inapplicable.
Wolgel, 821 F.2d at 445. The Second Circuit then
remanded the case to the district court for trial. Wolgel,
821 F.2d at 446. This Court denied the airline’s petition for
certiorari. The decision of the court below demonstrates
that this issue is now ripe for review.
The Fifth Circuit is also in conflict with the First,
Second, Third, Ninth, and Eleventh Circuits in its more
general holding that all claims for which the Convention
provides no remedy are broadly preempted merely because
they arise in the “international transportation of persons,
11
baggage, or goods.” In an Article 17 case involving a
passenger’s injury after disembarkation, the First Circuit
held that, because the Convention did not apply, the
passenger was left “to the remedies of local law.” Hernandez
v. Air France, 545 F.2d 279, 284 (1st Cir. 1976), cert. denied,
430 U.S. 950 (1977).
In an Article 18 case involving loss of cargo (a drug) that
occurred at a warehouse that was near, but nonetheless
outside, New York’s Kennedy Airport, the Second Circuit
held that, because the Convention did not apply, the plaintiff
could recover damages that were not limited by the
Convention’s terms. Victoria Sales Corp. v. Emery Air
Freight, Inc., 917 F.2d 705, 707 (2d Cir. 1990). In a similar
Article 18 case involving damage to cargo (a machine) taking
place during ground transportation that was close to, but
clearly outside, London’s Heathrow Airport, the Ninth
Circuit held that, because the Convention did not apply,
determination of the plaintiff's damages was governed by the
air waybills issued. Read-Rite Corp. v. Burlington Air
Express, Ltd., 186 F.3d 1190, 1194 (9th Cir. 1999).
In other cases governed by Article 17,” the Third and
Eleventh Circuits have also held that the Convention did
not preempt local law in situations that the Convention
does not govern. See, e.g., Abramson v. Japan Airlines
Co., Ltd., 739 F.2d 130, 134 (8d Cir. 1984) (when the
Warsaw Convention is inapplicable to the claim raised, “it
does not serve as a bar to alternate theories of recovery.”);
Floyd v. Eastern Airlines, 872 F.2d 1462, 1481 (11th Cir.
1989), rev’d on other grounds, 499 U.S. 530 (1991) (“In
those aspects of the passenger-carrier relationship which
the Convention does not address, it does not apply at all,
and local law must govern.”).
* As shown in more detail below, while Tseng held that the proper
reading of Article 17 was that personal injury claims not covered by the
Convention may not be brought under local law, the reasoning of the
above courts remains valid to the extent that it can be applied to non-
injury cases.
12
State appellate courts, too, have considered this question
and found that the Warsaw Convention does not preempt local
law, including the Texas Deceptive Trade Practices Act, the
specific statute under which Mbaba sued Air France in the
case at bar. See, e.g., Imtiaz v. Emery Air Freight, Inc., 728
S.W.2d 897 (Tex. App. — Houston [Ist Dist.] 1987, no writ).
The Fifth Circuit reads its decision as consistent with
that of the Second Circuit in King v. American Airlines,
Inc., 284 F.3d 352 (2d Cir. 2002). App. 9a. Petitioners believe
this to be incorrect. In King, the district court held that a
passenger’s claim that an airline’s “bumping” him from a
flight was racially motivated fell within the scope of the
Warsaw Convention (and, therefore, was preempted) because
“bumping” is a delay in international travel within the
meaning of the Warsaw Convention’s Article 19. See King v.
American Airlines, Inc., 146 F.Supp. 2d 159, 162
(N.D.N.Y. 2001). The Second Circuit affirmed the trial court’s
finding of preemption in King, but on a different ground,
because “[t]he events in question occurred in the course of
embarkation,” and therefore fell “within the substantive
scope of Article 17.” King, 284 F.3d at 358. Importantly,
neither the trial court nor the Second Circuit found the King
claim preempted merely because “the events giving rise to
the claim occurred in the course of the international carriage
of passengers and baggage.” However, if the Fifth Circuit is
correct in reading its decision as consistent with King, then
the conflict between the Circuits is even more profound —
with the Second and Fifth Circuits finding complete
exclusivity and the First, Third, Seventh, Ninth, and
Eleventh Circuits finding only limited exclusivity. 5
The decision below presents a live, direct conflict
between at least the Fifth and Seventh Circuits as to the
proper interpretation of the Warsaw Convention and, to the
extent not overruled by Tseng, among the First, Second,
Third, Ninth, and Eleventh Circuits, as well. The Court
should resolve the conflict among the Circuits because denial
of certiorari would invite further judicial expansion of the
preemptive scope of this treaty and-perpetuate the conflict.
The decision below affords the Court a ripe opportunity for
review of this important issue.
13
B. The Courts Below Misplaced Their Reliance
on Montreal Protocol No. 4’s Change in
Article 24
In finding broad preemption of all claims net
specifically addressed in the Convention, the district court
stressed the change in Article 24’s language to, “In the
carriage of passengers and baggage ... ” from the
language previously used, “In the cases covered by Articles
18 and 19... .” App. 20b.
Article 24 as amended expressly provides in
pertinent part that “any action for damages,
however founded, can only be brought subject
to the conditions and limitations of this
Convention...
App. 20b [emphasis supplied by the court]. The district
court noted that the Fifth Circuit had not addressed the
issue of the Convention’s preemption “in the wake of
Tseng and Montreal Protocol No. 4.” App. 20b.
In affirming the district court, the Fifth Circuit
likewise stressed the change (App. 8a), and noted:
Neither the United States Supreme Court
nor the Fifth Circuit has interpreted Article
24 of the Warsaw Convention since it was
altered by Montreal Protocol No. 4.
App. 5a.
The court below noted (App. 6a), but apparently
misperceived, this Court’s opinion in Tseng that:
Revised Article 24, El Al urges and we
agree, merely clarifies, it does not alter, the
Convention’s rule of exclusivity
Tseng, 525 U.S. at 175. If the Court was correct in Tseng,
then — if the Convention was not intended to broadly
preempt local law in all matters before the ratification of
Montreal Protocol No. 4 in 1999 — it was not altered to do
so by Montreal Protocol No. 4. The lower courts’ strong
suggestion to the contrary was error.
14
C. The Courts Below Misread Tseng
To understand how the courts below misplaced their
reliance on Tseng requires an understanding of the
decisional background leading up to Tseng. Most Warsaw
Convention preemption cases have involved claims of
personal injury or death, including six decisions by this
Court in less than 20 years.” The First, Second, Third, and
Fifth Circuits have also grappled with the issue of
preemption in cases not reviewed by this Court — again,
almost always in the context of personal injury claims.”
It is important to recognize the prevalence of personal
injury in the constellation of Warsaw Convention cases
because it is easy to overlook — as did the courts below —
the fact that when this Court wrote in Tseng that
[t]he treaty precludes passengers from
bringing actions under local law when they
cannot establish air carrier liability under
the treaty...”
the Court was announcing this rule in the specific and
limited context of personal injury cases only.” This becomes
even more clear when the Tseng Court's full analysis and
interpretation of Article 24 are properly considered.
* See Husain, 540 U.S. 644 (2004) (death), Tseng, 525 U.S. 155
(1999) (personal injury); Zicherman, 516 U.S. 217 (1996) (death);
Floyd, 499 U.S. 530 (1991) (personal injury); Chan, 490 U.S. 122
(1989) (death); and Saks, 470 U.S. 392 (1985) (personal injury).
* See, e.g., Wallace v. Korean Airlines, 214 F.3d 293 (2d Cir.
2000) (personal injury); Potter v. Delta Airlines, Inc., 98 F.3d 881
(5th Cir. 1996) (personal injury); Abramson v. Japan Airlines Co.,
Ltd., 739 F.2d 130, 134 (3d Cir. 1984) (personal injury), Hernandez v.
Air France, 545 F.2d 279, 284 (1st Cir. 1976), cert. denied, 430 U.S. 950
(1977) (personal injury).
* Tseng, 525 U.S. at 175.
* The actual holding of Tseng is much narrower than that suggested
by the courts below: “[Wle hold that the Warsaw Convention precludes a
passenger from maintaining an action for personal injury damages under
local Jaw when her claim does not satisfy the conditions for liability under
the Convention.” Tseng, 525 U.S. at 176 [emphasis added].
15
The Tseng Court noted that Article 24 was “not a
model of the clear drafter’s art” and that its words had
been subject to “divergent interpretation.” Tseng, 525 U.S.
at 168. The lower court had taken the view that “les cas
prevus a larticle 17” meant “those cases in which a
passenger could actually maintain a claim for relief under
Article 17.” Id. Thus, the Second Circuit had permitted
any passenger whose personal injury suit did not satisfy
the liability conditions of Article 17 to pursue the claim
under local law. Jd. The Tseng plaintiff had alleged only
mental injuries suffered as a result of an offensive pre-
boarding search of her person. Tseng, 525 U.S. at 163-64.
Because this Court had held in Floyd seven years earlier
that purely mental injuries were not compensable under
the Convention,” the Second Circuit’s reading of Article 24
would have allowed the Tseng plaintiff to sue the airline
under local law. Tseng, 525 U.S. at 168.
This Court rejected the Second Circuit’s view and held
instead that —
“[L]es cas prevus a larticle 17” refers
generically to all personal injury cases
stemming from occurrences on board an
aircraft or in embarking or disembarking,
and simply distinguishes that class of cases
(Article 17 cases) from cases involving
damaged luggage or goods, or delay (which
Articles 18 and 19 address).
Id. Thus, the Court held that the Convention “precluded a
passenger from asserting any personal injury claims under
local law, including claims that failed to satisfy Article 17’s
liability conditions. .. .” Jd. [Emphasis added.]
In this context, it is clear that Tseng’s interpretation of
the Convention’s preemption precludes the assertion of
personal injury claims such as “purely mental injuries”
under local law not merely because a remedy for mental
” Floyd, 499 U.S. at 553.
16
injuries is not to be found in the Convention” but because
Article 17 “refers generically to all personal injury cases”
and prescribes strict limits for the recovery of damages
therefor. Tseng, 525 U.S. at 168. There is no corresponding
article of the Convention that refers generically to “all
breach-of-contract cases.” Thus, while some kinds of
personal injury claims are precluded” because of the
Convention’s express intention to uniformitize “certain
rules,” Petitioners’ breach-of-contract claims cannot be
broadly preempted by the mere fact that the Convention
does not address breaches of contract.
Nothing more clearly demonstrates the extent to which
the Fifth Circuit misread Tseng than the language of
Tseng itself, in which this Court quoted from the Brief of
the United States as Amicus Curiae:
[T]he Convention addresses and concerns, only and
exclusively, the airline’s liability for passenger
injuries occurring “on board the aircraft or in the
course of any of the operations of embarking or
disembarking.” Art. 17, 49 ‘Stat. 3018; [citation
omitted]. “The Convention's preemptive effect on
local law extends no further than the Convention’s
own substantive scope.” [Citation omitted]. A carrier,
therefore, “is indisputably subject to liability
under local law for injuries arising outside of
that scope... .”
Tseng, 525 U.S. at 171-72. [Emphasis added.] The Fifth
Circuit acknowledged this language in the Court’s opinion,
but dismissed it as “an escalator hypothetical” which, the
* The Court in Floyd held that the term “lesion corporelle” in
Article 17 of the Convention (in the original French text) did not include
“purely mental injuries.” Floyd, 499 U.S. at 553.
* ‘Types of personal injuries for which an international airline passenger
may not recover include those not resulting from an “accident” within the
meaning of Article 17 and those which are “purely mental injuries.”
” See supra, note 13.
" The Court in Tseng was quoting from the amicus brief of the
United States in response to the Second Circuit’s stated concern that “a
passenger injured by a malfunctioning escalator in the airline’s
(Continued on following page)
17
court held, “does not overcome other passages of Tseng
specifically related to Montreal Protocol No. 4.” App. 8a
[citation omitted].
Il. THE DECISION BELOW CANNOT BE
RECONCILED WITH THE VIEW OF THE COURT
OF LAST RESORT OF A SISTER SIGNATORY
THAT THE TREATY WAS INTENDED TO UNIFY
ONLY “CERTAIN” RULES - NOT ALL RULES
It has been noted in the past, both by this Court” and
others,” that the drafting history of the Convention
includes a proposal made by the Czechoslovak delegation
to state in the treaty that, in the absence of a stipulation
in the Convention itself, “‘the provisions of laws and
national rules relative to carriage in each [signatory] State
shall apply.””“ That proposal was withdrawn upon
amendment of the Convention’s title to read: “Convention
for the Unification of Certain Rules Relating to
International Transportation by Air.” 49 Stat. 3014
(emphasis added); see Tseng v. El Al Israel Airlines,
Lid., 122 F.3d 99, 105 (2d Cir. 1997), rev’d, Tseng, 525
U.S. 155 (1999),
In construing the provisions of the Warsaw
Convention, the opinions of sister signatories to the treaty
are “entitled to considerable weight.” Air France v. Saks,
470 U.S. 392, 404 (1985) (internal quotation marks
omitted). The British House of Lords, in Sidhu v. British
Airways ple, {1997} 1 All E.R. 193, considered that
inclusion of the word “certain” in the Convention’s title
terminal would have no duty to keep the escalator in proper repair.”
Tseng, 525 U.S. at 171-72.
* Tseng, 525 U.S. at 173.
* See, ¢.g., Tseng v. El Al Israel Airlines, Ltd., 122 F.3d 99, 105
(2d Cir. 1997), rev'd, Tseng, 525 U.S. 155 (1999).
“ Second International Conference on Private Aeronautical Law,
October 4-12, 1929, Warsaw, Minutes 176 (R. Horner & D. Legrez
transls. 1975).
18
~
accurately indicated that “the Convention is concerned
with certain rules only, not with all the rules relating to
international carriage by air.” Jd., at 204. For example, the
Convention does not say “anything ... about the carrier’s
obligations of insurance, and in particular about
compulsory insurance against third party risks.” Jd. The
Convention, in other words, is “a partial harmonization,
directed to the particular issues with which it deals.” Id.
As to those issues, the Lords concluded, “the aim of the
Convention is to unify.” Jd. Pointing to the overall
understanding that the Convention’s objective was to
“ensure uniformity,” id., at 209, the Lords suggested that
the Czechoslovak delegation may have meant to
underscore that national law controlled “chapters of law
_relating to international carriage by air with which the
Convention was not attempting to deal.” Jd.
The Second Circuit in Tseng based its decision to
allow the plaintiff to pursue her local law claims for
mental injuries not governed by the Convention in part on
this history. Tseng, 525 U.S. at 174. In reversing the
Second Circuit, this Court opined that “the withdrawn
Czechoslovak proposal will not bear the weight the Court
of Appeals placed on it.” Jd. However, it will easily bear the
considerably smaller weight that Mbaba proposes to place
upon it here.
CONCLUSION
In summary, the court below incorrectly decided a
recurring, important question of treaty law on which the
courts of the United States are in disarray. The proper
interpretation of this treaty is a matter of importance to
all international air carriers, to the millions of people who
travel internationally by air each day, and to the courts.
Review by the Court is necessary to resolve the conflict
among the Circuit Courts of Appeals, to ensure the
uniform and proper application of this treaty, and to settle
a recurring, significant issue concerning the application of
the treaty in the aftermath of the amendments effected by
Montreal Protocol No. 4.
19
PRAYER
For these reasons, Petitioners pray that their petition
for a writ of certiorari be granted.
Respectfully submitted,
THE LAW OFFICES OF JEFFREY L. DORRELL,
A PROFESSIONAL CORPORATION
JEFFREY L. DORRELL
Texas Bar No. 787386
U.S. (Southern District of Texas) Bar No. 18465
3303 Louisiana, Suite 150 f
Houston, Texas 77006-6616
Telephone: 713-807-1188
Telecopier: 713-807-1110
Attorney for Petitioners,
Edo George Mbaba and Patience Mbaba
Of Counsel:
DAVID J. FARRIS
Dated: October 23, 2006
App. 1
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-20452
EDO GEORGE MBABA; PATIENCE MBABA
Plaintiffs-Appellants,
v.
SOCIETE AIR FRANCE, doing business as Air France,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
(Filed July 25, 2006)
Before JONES, Chief Judge, and BARKSDALE and
BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
This case concerns the preemptive effect of the War-
saw Convention as amended by Montreal Protocol No. 4.
The Appellant, Edo George Mbaba, argues that his claims
stemming from excess baggage fees are not preempted
because such injuries are not contemplated by the Conven-
tion. The Appellee, Societe Air France (“Air France”),
argues that Mbaba’s claims are preempted due to the
Convention’s broad exclusivity. As explained below, the
Convention’s text and Supreme Court precedent inform
our conclusion that the claims are preempted.
App. 2
I. FACTUAL AND PROCEDURAL BACKGROUND
Mbaba purchased a ticket to travel on Air France from
Houston, Texas to Lagos, Nigeria. The trip was scheduled
for June 15, 2002, and included a layover in Paris, France.
Mbaba bought the ticket from Federal Express, his em-
ployer. The parties dispute whether Federal Express sold
Mbaba a “non-revenue” (complimentary) ticket. When
Mbaba checked in for the flight in Houston, he paid a
$520.00 excess baggage fee, $130.00 for each of his four
extra bags. His baggage ticket indicated that the bags
were to be transported from Houston to Lagos.
In Paris, Air France unloaded Mbaba’s baggage. Air
France says that it had to do this because Mbaba was a
non-revenue passenger. Meanwhile, Mbaba missed the
scheduled flight to Lagos. Mbaba reclaimed the baggage
and spent a night in the airport terminal waiting for the
next flight. The next day, when Mbaba checked in for the
new Lagos flight, an agent said Mbaba would have to pay
$4048.66 for the extra bags. In Paris, Air France charges
excess baggage fees based upon the weight of the bags.
Mbaba alleges that the agent refused to let him send the
bags back to Houston and said that if Mbaba did not pay
the charge, the bags would be “taken out and burned.”
Mbaba payed the fee with a credit card.
Mbaba filed this suit against Air France in Texas state
court, alleging breach of contract, violation of the Texas
Deceptive Trade Practices Act, and common law fraud. Air
France removed the case to federal court. After a period of
discovery, the district court granted summary judgment to
Air France, holding that the Warsaw Convention pre-
empted Mbaba’s state law claims. Mbaba appealed.
App. 3
Il, STANDARD OF REVIEW
This Court reviews a district court’s grant of a sum-
mary judgment de novo, applying the same standards as
the district court. Hirras v. Nat'l R.R. Passenger Corp., 95
F.3d 396, 399 (5th Cir. 1996). The evidence should be
viewed in the light-mest favorable to the nonmoving party,
and the record should not indicate a genuine issue as to
any material fact. Am. Home Assurance Co. v. United
Space Alliance, 378 F.3d 482, 486 (5th Cir. 2004).
III. DISCUSSION
A. The Warsaw Convention
This case presents the first opportunity for this Court
to interpret the language of the Warsaw Convention as
amended by Montreal Protocol No. 4. See Convention for
the Unification of Certain Rules Relating to International
Transportation By Air, Oct. 12, 1929, 49 Stat. 3000, T.S.
No. 876 (1934) (as amended by Montreal Protocol No. 4, as
reprinted in S. Rep. No. 105-20, at 21-32 (1998)) (“Warsaw
Convention”). The “cardinal purpose” of the Warsaw
Convention is “to achieve uniformity of rules governing
claims arising from international air transportation.” El Al
Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 169
(1999). It applies to “all international transportation of
persons, baggage, or goods performed by aircraft for hire.”
Warsaw Convéntion, as reprinted in S. Rep. No. 105-20, at
21 (Article 1).
The language at issue is in Paragraph 1 of Article 24.
It states:
1. In the carriage of passengers and baggage,
any action for damages, however founded, can
App. 4
only be brought subject to the conditions and lim-
its set out in this Convention, without prejudice
to the question as to who are the persons who
have the right to bring suit and what are their
respective rights.
Id. at 29. The language in Paragraph 2 of Article 24 offers
some guidance in interpreting Paragraph 1. It states:
2. In the carriage of cargo, any action for dam-
ages, however founded, whether under this Con-
vention or in contract or in tort or otherwise, can
only be brought subject to the conditions and lim-
its of liability set out in this Convention without
prejudice to the question as to who are the per-
sons who have the right to bring suit and what
are their respective rights. Such limits of liability
. constitute maximum limits and may not be ex-
ceeded whatever the circumstances which gave
rise to the liability.
Id. at 29. This version became binding in the United
States March 4, 1999, after adoption of Montreal Protocol
No. 4. Tseng, 525 U.S. at 175 n.14. The previous version of
Article 24 stated:
1. In the cases covered by articles 18 and 19
any actions for damages, however founded, can
only be brought subject to the conditions and lim-
its set out in this Convention.
2. In the cases covered by article 17 the provi-
sions of the preceding paragraph shall also apply,
without prejudice to the questions as to who are
the persons who have the night to bring suit and
what are their respective rights.
Warsaw Convention, as reprinted in note following 49
U.S.C. § 40105, at 11 (2000). It is undisputed that the
App. 5
alleged damages suffered by Mbaba do not fall within the
language of Articles 17, 18, or 19. Article 17 describes
carrier liability for death or bodily injury. Warsaw Conven-
tion, as reprinted in S. Rep. No. 105-20, at 26. Article 18
describes carrier liability for damage to passenger bag-
gage. Id. Article 19 describes carrier liability for damage
caused by delay in transportation of “passengers, baggage,
or goods.” Id.
Montreal Protocol No. 4 deals primarily with rules
relating to cargo transportation. Jd. at 1. For example, it
reduces paperwork that must accompany cargo and
redefines cargo liability. Id. at 3-4. The protocol languished
for more than twenty years in the Senate, because Sena-
tors objected to liability limits for personal injuries and
death that would be triggered by its adoption. Jd. at 2. In
1997, the Department of Transportation approved an
inter-airline agreement that waived the Convention’s
limits, which led to the Senate’s reconsideration of the
protocol. Jd.
B. El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng
Neither the United States Supreme Court nor the
Fifth Circuit has interpreted Article 24 of the Warsaw
Convention since it was altered by Montreal Protocol No.
4. The Supreme Court, however, reviewed the prior ver-
sion in El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525
U.S. 155 (1999).
Tseng sought damages for psychic and psychosomatic
injuries resulting from “an intrusive security search”
before she boarded an El Al Israel Airlines flight. Jd. at
160. The case presented a question of the Convention’s
exclusivity, given that the Convention did not address
App. 6
psychological injuries. Jd. The Court found that the Con-
vention barred Tseng’s recovery, holding that recovery for
a personal injury “not allowed under the Convention, is
not available at all.” Jd. at 161.
The Court reasoned that recourse to local law would
undermine the Convention’s purpose — uniformity of air
carrier liability. Id. at 161. It relied on language in Article
1 that made the Convention apply to “all international
transportation” and Article 24, as written before adoption
of Montreal Protocol No. 4. Id. at 162. The Court found
that Article 24 was part of “a compromise between the
interests of air carriers and their customers” that re-
stricted the claims those customers could pursue. Id. at
170-71. It also explained that an interpretation allowing
Tseng’s claims would lead to “several anomalies,” includ-
ing cases where passengers injured physically would be
subject to liability limits while passengers merely trauma-
tized would not. Jd. at 171. Finally, the Court concluded
that other treaty signatories had interpreted the Conven-
tioa as an exclusive remedy. Id. at 176.
The Court also addressed Montreal Protocol No. 4,
which at the time of the decision had been ratified but had
not taken effect. Jd. at 174. It stated that under the
amended Article 24, both parties agreed that “[t]he treaty
precludes passengers from bringing actions under local
law when they cannot establish air carrier liability under
the treaty.” Jd. at 175. Indeed, Tseng “concede[d]” that
under the protocol she would have “no recourse to an
alternate remedy.” Jd. at 160-61. The Court said that the
protocol “clarifies, but does not change, the Convention’s
exclusivity domain.” Jd. at 161. Justice Stevens, the only
dissenting member of the Court, also assumed that the
protocol clarified the exclusivity of the Convention. Id. at
App. 7
177 (Stevens, J., dissenting) (describing his disagreement
as having limited significance because “the issue has been
conclusively determined for future cases by the recent
amendment [Montreal Protocol No.4] to the Warsaw
Convention”).
C. Analysis
Mbaba argues that his claims cannot be preempted
because his injuries are not contemplated by the Conven-
tion. He focuses on the fact that his injury is not even
within the broad categories of the Convention: personal
injury, lost or damaged baggage, or delay. He suggests that
the district court’s holding in effect means that “unless an
injury is specified in the Warsaw Convention, there can be
no remedy for it.” Id. He makes this point with an analogy:
“An airline could, if it chose, even line up passengers on an
international flight and rob them at gunpoint without fear
of any civil liability to the victims whatsoever.” Robbery is
not prohibited by the Convention.
Mbaba supports his argument with the text of Article
24, specifically the language stating that claims “can only
be brought subject to the conditions and limits set out in
this Convention.” He also relies on a portion of Tseng
relating to a hypothetical involving an escalator. Tseng,
525 U.S. at 171-72. The hypothetical came from Tseng’s
Court of Appeals decision. The Second Circuit reasoned
that if the Convention excluded Tseng’s claims “then a
passenger injured by a malfunctioning escalator in the
airline’s terminal would have no recourse against the
airline, even if the airline recklessly disregarded its duty
to keep the escalator in proper repair.” Id. at 171. In
response, the Supreme Court stated, “[T]he Convention’s
App. 8
preemptive effect on local law extends no further than the
Convention’s own substantive scope. A carrier, therefore, is
indisputably subject to liability under local law for injuries
arising out of that scope: e.g., for passenger injuries
occurring before any of the operations of embarking or
disembarking.” Jd. at 172 (internal quotation marks
omitted). Finally, Mbaba relies on statements made by
Senator Biden that describe Montreal Protocol No. 4. as
“simplifyling] cargo rules” without making “controversial”
changes. See 144 ConG. REc. $11059-02 (1998).
Mbaba’s argument fails to overcome the text of the
Convention and Tseng. First, the text of Article 24 specifi-
cally preempts claims resulting from the carriage of
baggage “however founded.” Second, the language in
Tseng surrounding the escalator hypothetical does not
overcome other passages of Tseng specifically related to
Montreal Protocol No. 4. Tseng, 525 U.S. at 175 (describing
the amended Convention as “preclud[ing] passengers from
* Mbaba asks this Court to interpret “scope,” as used in Tseng, as
pertaining to the types of claims contemplated by the Convention. Such
an interpretation, however, would directly contradict the ultimate
holding in Tseng, which precluded claims for psychological! injuries
because the Convention did not include them. The Supreme Court
appears to use the term “scope” to describe the specified parameters of
the Convention. Indeed, Article 17 states that a carrier is liable for
death or injuries that take place “onboard” or while “embarking or
disembarking.” Warsaw Convention, as reprinted in S. Rep. No. 105-20,
at 26; see also Acevedo-Reinoso v. Iberia Lineas Aereas de Espana S.A.,
449 F.3d 7, 14 (ist Cir. 2006) (remanding for a determination of
whether the alleged injury “occurred on board the airplane or in the ~
process of embarking or disembarking”).
* The amended version of Paragraph 1 uses the more broad
language of “In the carriage of passengers and baggage” rather than the
previously used “In the cases covered by articles 18 and 19.” Supra Part
IILA.
’
App. 9
bringing actions under local law when they cannot estab-
lish air carrier liability under the treaty”). Third, Senator
Biden’s comments are unpersuasive as they speak only to
the general characteristics of the protocol. Finally, Mbaba’s
recitation of analogies is unhelpful. Our task is to review
the Convention in relation to a tariff on the carriage of
baggage. We will not consider other scenarios.
Our decision conforms with the view taken by the
Second Circuit in King v. American Airlines, Inc., 284 F.3d
352 (2d Cir. 2002). In King, the court held that the Warsaw
Convention preempted a discrimination claim based on an
allegation that the plaintiffs were bumped from a flight
because of their race. Jd. at 358. The King Court noted
-that the Supreme Court in Tseng “held that the Conven-
tion’s preemptive effect on local law extends to all causes
of action ... regardless of whether a claim actually could
be maintained under the provisions of the Convention.” Jd.
at 357.
For these reasons, the Warsaw Convention preempts
Mbaba’s claims. To hold otherwise would undermine the
Convention's goal of uniformity. See Tseng, 525 U.S. at 169
(“Given the Convention’s comprehensive scheme of liabil-
ity rules and its textual emphasis on uniformity, we would
be hard put to conclude that the delegates at Warsaw
meant to subject air carriers to the distinct, nonuniform
liability rules of the individual signatory nations.”).
Because we affirm on this ground, we do not reach Air
France’s alternative arguments.
[V. CONCLUSION
Based on the text of the Warsaw Convention and the
language in Tseng, we hold that Mbaba’s claims are
App. 10
preempted. Accordingly, his injuries are not actionable in
the courts of the United States. We affirm the district
court’s grant of summary judgment.
App. 11
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
EDO GEORGE MBABA et ux §
PATIENCE MBABA, g
i i §
Plaintiffs, §$ CIVIL ACTION
v. § NO. H-03-5430
SOCIETE AIR FRANCE, s/h/a §
AIR FRANCE AIRLINE, ;
Defendant. §
MEMORANDUM AND ORDER
This matter is before the Court on Defendant Societe
Air France, s/h/a Air France Airline’s Renewed Motion for
Summary Judgment [Doc. # 29] (“Air France’s Motion”).
Plaintiff Edo George Mbaba (“Mbaba”) has filed a response
on his and his wife’s behalf [Doc. # 30]. Air France has
replied [Doc. # 32]. Having considered the parties’ submis-
sions, all matters of record, and applicable legal authori-
ties, the Court concludes that Air France’s Motion should
be granted.’
I. BACKGROUND FACTS
Mbaba bought a ticket for travel on June 15, 2002 on
Air France Airline from Houston, Texas to Lagos, Nigeria,
* The Court also has received Mbaba’s Motion to Compel and for
Sanctions (Doc. # 33}. This Motion is denied as moot.
App. 12
with a stopover in Paris, France. Mbaba bought his ticket
through his employer, Federal Express. The parties
dispute whether Mbaba was a “non-revenue passenger”
traveling on a complimentary ticket provided to Federal
Express employees that required him to pay various
charges, including excess baggage charges.’ There is no
dispute that when Mbaba checked in for his flight in
Houston, he paid a $520.00 excess baggage fee.’ He was
given an excess baggage ticket indicating the bags were to
be transported from Houston to Lagos. When Mbaba
arrived in Paris, he was informed by the Air France agent
that he would have to pay an additional $4,048.66 excess
baggage charge for the transport of his bags from Paris to
Lagos.’ Perceiving that he had no other option,’ Mbaba
paid the charge under strident protest.
Mbaba filed suit against Air France in state court in
Harris County, Texas alleging breach of contract, violation
of the Texas Deceptive Trade Practices Act, and common
law fraud. Air France removed the case to this court
pursuant to the Foreign Sovereign Immunities Act. Air
France now moves for summary judgment on the grounds
that Mbaba’s state law causes of action are preempted by
the Warsaw Convention.
* Federal Express provides employees the benefit of purchasing air
travel through Federal Express at discount prices. Mbaba paid Federal
Express $1,167.26 for his ticket. There is no evidence concerning how
much Federal Express paid Air France for the ticket or the retail price
of the ticket.
* This fee was based on a charge of $130.00 per excess bag.
* This fee was based on the weight of the excess bags.
* Mbaba alleges that the Paris gate agent told him “if you do not
pay the charge, your bags will be taken outside and burned.” Mbaba
Affidavit, J 5, Exhibit A to Mbaba’s response. \
App. 13
Il SUMMARY JUDGMENT STANDARDS
Rule 56 of the Federal Rules of Civil Procedure man-
dates the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who fails to
make a sufficient showing of the existence of an element
essential to the party’s case, and on which that party will
bear the burden at trial. Baton Rouge Oil & Chem. Work-
ers Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir.
2002) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986)).
In deciding a motion for summary judgment, the
Court must determine whether “the pleadings, deposi-
tions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” FED. R.
Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Calbillo v. Cavender Oldsmobile, Inc., 288 F.3d
721, 725 (5th Cir. 2002). “An issue is material if its resolu-
tion could affect the outcome of the action.” Terrebonne
Parish Sch. Bd. v. Columbia Gulf Transmission Co., 290
F.3d 303, 310 (5th Cir. 2002) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). In deciding whether
a fact issue has been created, the facts and the inferences
to be drawn from them must be reviewed in the light most
favorable to the nonmoving party. Hotard v. State Farm
Fire & Cas. Co., 286 F.3d 814, 817 (5th Cir. 2002). How-
ever, factual controversies are resolved in favor of the
nonmovant “only when an actual controversy exists — that
is, when both parties have submitted evidence of contra-
dictory facts.” Olabisiomotosho v. City of Houston, 185 F.3d
§21, 525 (5th Cir. 1999). :
App. 14
The party moving for summary judgment has the
initial burden of demonstrating the absence of a material
fact issue with respect to those issues on which the
movant bears the burden of proof at trial. Smith v. Breno-
ettsy, 158 F.3d 908, 911 (5th Cir. 1998). The movant meets
this initial burden by showing that the “evidence in the
record would not permit the nonmovant to carry its bur-
den of proof at trial.” Id. If the movant meets this burden,
“the nonmovant must go beyond the pleadings and desig-
nate specific facts showing that there is a genuine issue for
trial.” Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275,
282 (5th Cir. 2001) (quoting Tubacex, Inc. v. M/V Risuan, 45
F.3d 951, 954 (5th Cir. 1995)). “A dispute over a material
fact is genuine if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Id.
(quoting Brenoettsky, 158 F.3d at 911 (5th Cir. 1998)
(internal quotation marks omitted)); see also Quorum
Health Res., L.L.C. v. Maverick County Hosp. Dist., 308
F.3d 451, 458 (5th Cir. 2002).
The nonmovant’s burden is not met by mere reliance
on the allegations or denials in the nonmovant’s pleadings.
See Morris v. Covan Worldwide Moving, Inc., 144 F.3d 377,
380 (5th Cir. 1998); Diamond Offshore Co. v. A&B Build-
ers, Inc., 302 F.3d 531, 545 n.13 (5th Cir. 2002) (noting
that “unsworn pleadings do not constitute proper sum-
mary judgment evidence,” citing Johnston v. City of
Houston, 14 F.3d 1056, 1060 (5th Cir. 1994)). Likewise,
“unsubstantiated or conclusory assertions that a fact issue
exists” do not meet this burden. Morris, 144 F.3d at 380.
Instead, the nonmoving party must present specific facts
which show “the existence of a genuine issue concerning
every essential component of its case.” Jd. In the absence
of any proof, the court will not assume that the nonmovant
App. 15
could or would prove the necessary facts. McCallum
Highlands, Ltd. v. Washington Capital Dus, Inc., 66 F.3d
89, 92 (5th Cir. 1995), revised on other grounds upon
denial of reh’g, 70 F.3d 26 (5th Cir. 1995); Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
Il. ANALYSIS
Air France contends that the treaty known popularly
as the Warsaw Convention® preempts all of Mbaba’s state
law claims and requires dismissal of this case in its
entirety. Mbaba argues that because his claim is not one
for personal injuries within the scope of Article 17, for lost
baggage within the scope of Article 18, or delay within the
scope of Article 19, the claim is outside the scope of the
Warsaw Convention altogether and is not preempted.
Mbaba further argues that the Warsaw Convention
provides for application of local law in cases of “willful
misconduct.”
* Convention for the Unification of Certain Rules Relating to
International Transportation By Air, Oct. 12, 1929, 49 Stat. 3000, T.S.
No. 876, note following 49 U.S.C. § 40105.
” Mbaba also objects to Air France’s summary judgment evidence.
Mbaba objects to Air France’s Exhibit B, Plaintiffs’ First Amended
Original Petition filed in state court, on the grounds that pleadings are
not competent summary judgment evidence. Air France submits the
pleading not as evidence in support of any fact in issue, but to establish
the allegations Mbaba is making in this case. The Court may take
judicial notice of the contents of the First Amended Original Petition,
which is a matter of record in this case. Mbaba’s objection to Exhibit B
is overruled. Mbaba objects to Air France’s Exhibit C, “Legal No-
tices/General Conditions of Carriage by Air France,” as not properly
authenticated by affidavit and as hearsay. Contrary to Mbaba’s
objection, Exhibit C was authenticated by the Affidavit of Jeromy
Hughes, attached to Air France’s Motion. Exhibit C is a business record
(Continued on following page)
App. 16
“The cardinal purpose of the Warsaw Convention ...
is to achieve uniformity of rules governing claims arising
from international air transportation.” El Al Israel Air-
lines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 169 (1999).
Article 24 of the Warsaw Convention, as modified by the
of Air France and is admissible under Federal Rule of Evidence 803(6).
Mbaba objects to Air France Exhibit D, the Affidavit of Gregory J.
Kozlowski, on the grounds that it contains blanks and a referenced
tariff is not attached. The Affidavit is clearly incomplete. The Affidavit
is not admissible as to any statement that contains a blank. The
Affidavit, however, contains numerous admissible statements that are
within Kozlowski’s personal knowledge as Assistant United States
Counsel for Air France. Kozlowski testifies that he has personal
knowledge of the tariff applicable between June 15, 2002 and June 17,
2002. He can testify as to the contents of that tariff based on his
personal knowledge without attaching the tariff itself. Mbaba’s
objections to Exhibit D are overruled in part and sustained in part.
Finally, Mbaba objects to Air France’s Exhibit E, the Affidavit of Billie
Snow. The Snow Affidavit contains certain statements that are
speculative and without foundation. Mbaba’s objection to the following
statement in paragraph 4 of the Snow Affidavit is sustained: “When
the agent issued a baggage charge all the way to Lagos, it was done as a
courtesy, in hopes that a sympathetic agent in Charles De Gualle
airport in Paris, France would accept the coupon for payment to the
final destination” is sustained. Mbaba’s objection is also sustained as to
the statement in paragraph 5 of the Snow Affidavit, that “He [Mbaba]
was well aware that he had to collect his luggage at Charles De Gaulle
airport in France and recheck it again for the Lagos leg of his trip,” and
that “[i]t appears that Mr. Mbaba was not an actual airline employee,
but nevertheless obtained non-revenue travel tickets.” The remainder of
the Snow Affidavit is admissible. Mbaba’s objection to Exhibit E
accordingly is overruled in part and sustained in part.
Air France’s hearsay objection (contained in its Reply) to Mbaba’s .
testimony in his Affidavit as to what an unnamed Air France agent in
Houston told him is overruled.
App. 17
Montreal Protocol No.4 (effective March 4, 1999)," pro-
vides:
1. In the carriage of passengers and baggage,
any action for damages, however founded, can
only be brought subject to the conditions and lim-
its set out in this Convention, without prejudice
to the question as to who are the persons who
have the right to bring suit and what are their
respective rights.
2. In the carriage of cargo, any action for dam-
ages, however founded, whether under this Con-
vention or in contract or in tort or otherwise, can
only be brought subject to the conditions and lim-
its of liability set out in this Convention without
prejudice to the question as to who are the per-
sons who have the right to bring suit and what
are their respective rights. Such limits of liability
constitute maximum limits and may not be ex-
ceeded whatever the circumstances which gave
rise to the liability.”
* Montreal Protocol No. 4 to Amend the Convention for the
Unification of Certain Rules Relating to Internationa] Carriage by Air
(“Montreal Protocol”). See Cong. Rec. S11059-02 (Sept. 28, 1998).
* The prior version of Article 24 provided:
(1) In the cases covered by articles 18 and 19 any action
for damages, however founded, can only be brought subject
to the conditions and limits set out in this convention.
(2) In the cases covered by article 17 the provisions of the
preceding paragraph shall also apply, without prejudice to
the questions as to who are the persons who have the right
to bring suit and what are their respective rights.
Id. at 163.
App. 18
_ The Warsaw Convention applies to “all international
transportation of persons, baggage, or goods performed by
aircraft for hire.” Jd. at 162 (citing Article 1(1) of the
Warsaw Convention). A passenger asserting a claim
subject to the Warsaw Convention is limited to damages
for bodily injuries suffered as a result of an accident
(Article 17), damages resulting from baggage or goods
destruction, loss or damages (Article 18), or loss caused by
delay (Article 19). Jd. at 162-63, 169.
Tseng was a case involving claims for psychological
personal injuries caused by a 15-minute airline security
officer’s search of plaintiff's body and luggage prior to her
boarding an international flight. In addressing the War-
saw Convention as written prior to the Montreal] Protocol
No. 4, the Tseng Court read Article 24 in conjunction with
Article 17, which governs claims for personal injuries. The
Supreme Court held that no recovery outside the scope of
the Convention was allowed for an international traveler's
personal injury incurred “on board the aircraft or in the
course of any of the operations of embarking or disembark-
ing.” Id. at 160-61, 171-72. The Court held generally that
suit by international travelers for personal injuries had to
be asserted under the Convention; the Convention is the
international traveler’s exclusive remedy. Jd. at 176. The
Court further noted that the Montreal Protocol No. 4
amended Article 24, and (as agreed by the parties) made
the Convention's preemptive effect “clear.” Jd. at 174-75.
“The treaty precludes passengers from bringing actions
under local law when they cannot establish air carrier
liability under the treaty. Revised Article 24 ... merely
clarifies, it does not alter, the Convention’s rule of exclu-
sivity.” 525 U.S. at 175. “Recourse to local law ... would
undermine the uniform regulation of international air
App. 19
carrier liability that the Warsaw Convention was designed
to foster.” Jd. at 161. “Given the Convention’s comprehen-
sive scheme of liability rules and its textual emphasis on
uniformity, we would be hard put to conclude that the
delegates at Warsaw meant to subject air carriers to the
distinct, nonuniform liability rules of the individual
signatory nations.” Jd. at 169.
In King v. American Airlines, Inc., 284 F.3d 352, 358
(2d Cir. 2002), the Second Circuit held the plaintiffs’
discrimination claim based on their allegation that they
were bumped from an international flight because of their
race was preempted by the Warsaw Convention. Holding
that “[t]he Kings’ discrimination claim is preempted by the
Warsaw Convention if the events giving rise to the claim
occurred in the course of the international ‘carriage of
passengers and baggage,’ regardless of whether the origi-
nal or amended Article 24 controls,” Jd. at 358,” the
* In so ruling, the King court however made questionable state-
ments about the scope of preemption arising from the Convention.
Although ruling in a case that arose after the effective date of the Mont-
real Protocol No. 4, the King court stated that “the events in question
occurred in the course of embarkation, and ... [the claim] therefore
falls within the substantive scope of Article 17.” Jd. at 358. The court of
appeals also stated that the claims in issue were “preempted by Article
17.” Id. at 359, 360. Those comments are not binding on this Court, nor
determinative of the outcome of the case at bar. A full reading of the
King opinion demonstrates that the Second Circuit did not intend to
limit the preemptive force of the Convention to claims on which
recovery is available under Article 17, which covers claims for “bodily
injury” occurring in an “accident” “in the course of any of the operations
of embarking or disembarking.” The King court did not include Article
17’s liability requirements of “bodily injury” and “accident” within the
scope or preemption that the court concluded existed. See also Gibbs v.
American Airlines, Inc., 191 F. Supp. 2d 144, 147-48 (D.D.C. 2002)
(finding § 1981 discrimination claim preempted under pre-Montreal
Protocol Article 24).
App. 20
Second Circuit reinforced the principle that the Conven-
tion is the sole source of a remedy for damages sought by
an international traveler against an airline.
Article 24 as amended by the Montreal Protocol No. 4
was in effect at the time of the events in issue in the case
at bar. The Fifth Circuit has not addressed preemption
pursuant to the Warsaw Convention in the wake of Tseng
and the Montreal Protocol No. 4." Nevertheless, the Court
concludes that Mbaba’s claims are preempted by these
authorities. Article 24 as amended expressly provides in
pertinent part that “any action for damages, however
founded, can only be brought subject to the conditions and
limits set out in this Convention ... ” (emphasis added).
The Court is bound by the Warsaw Convention’s language
which expressed “the shared expectations of the contract-
ing parties.” Tseng, 525 U.S. at 167 (quoting Air France v.
Saks, 470 U.S. 392, 399 (1985)). Article 24 must be read in
conjunction with Article 1(1), which provides that the
Convention governs liability in “all international transpor-
tation of persons, baggage, or goods performed by aircraft
for hire.” To the extent Tseng’s reference to Articles 17, 18
and 19 apply to events after the effective date of the
Montreal Protocol No. 4 in the United States (March 4,
1999), which is questionable, only the temporal and
spacial limitations found within those substantive liability
provisions will guide (and possibly restrict) the scope
of the Convention’s preemption. See Tseng, 525 U.S.
at 171-72, 174-75, 176. For instance, as to claims for
" The Fifth Circuit previously ruled that the Warsaw Convention’s
preemptive force extended even to claims for personal injuries that fall
outside the coverage of Article 17 in Potter v. Delta Airlines, Inc., 98
F.3d 881, 884-85 (5th Cir. 1996).
App. 21
personal injuries, the preemptive effect of the Convention
reaches events that occur in connection with “embarking,”
“disembarking,” or while “onboard” the aircraft, as these
terms are used in Article 17 of the Convention. See id.;
Marotte v. American Airlines, Inc., 296 F.8d 1255, 1260
(1lith Cir. 2001); King, 284 F.3d at 358-60; Buonocore v.
Trans World Airlines, Inc., 900 F.2d 8, 10 (2d Cir. 1990)
(same). Claims for damage to “registered baggage,” are
encompassed by the Convention “if the occurrence which
caused the damage ... took place during the carriage by
air.”” Warsaw Convention, Art. 18. Finally, carriers are
liable for damage occasioned by delay if the delay is “in the
transportation by air of passengers, baggage, or goods.”
Id., Art. 19.
Mbaba sues Defendant for breach of contract, viola-
tion of the Texas Deceptive Trade Practices Act, Tex. Bus.
& Comm. Code, §§ 17.46(b)(3), 17.50(a)(3), and common
law fraud to recover allegedly excessive baggage fees
charged during his stop-over in Paris on his trip from
Houston to Lagos. During that stop, Mbaba was required
to retrieve his bags, wait to obtain a seat for the second leg
of the trip (because he was traveling “stand-by” on that
leg), and then re-check his luggage. Mbaba’s claims do not
fit within any of the Convention’s substantive liability
provisions, i.e., Articles 17, 18, or 19. Nevertheless, the
claims are squarely within the preemptive scope of the
Convention — the “international transportation of persons,
* “Carriage by air” is defined in Article 18(4) to be: “The carriage
by air within the meaning of the preceding paragraphs of this Article
comprises the period during which the baggage or cargo is in the charge
of the carrier, whether in an airport or on board an aircraft or, in the
case of a landing outside an airport, in any place whatsoever.”
App. 22
baggage, or goods performed by aircraft for hire.” Warsaw
Convention, Art. 1(1); see Tseng, 525 U.S. at 171-72. The
events at issue indisputably occurred in immediate tempo-
ral and physical proximity to Mbaba’s international travel.
He incurred the damages claimed when he presented his
luggage to be checked and loaded onto Defendant’s air-
plane for international transportation of that baggage on
his final flight to Lagos.” Mbaba’s claimed injury was
inflicted by Defendant’s agents while in the airport dealing
with the international transportation of Mbaba and his
baggage. Therefore, Mbaba’s state law claims are pre-
empted.
Mbaba also contends that the Warsaw Convention
does not preempt clainmis based on “willful misconduct.”
This contention is unavailing. Article 25 of the Warsaw
Convention provides:
In the carriage of passengers and baggage, the
limits of liability specified in Article 22 shall not
apply if it is proved that the damage resulted
from an act or omission of the carrier, his ser-
vants or agents, done with intent to cause dam-
age or recklessly and with knowledge that
damage would probably result; provided that, in
the case of such act or omission of a servant or
* The cases cited by Mbaba in which plaintiffs were allowed to
pursue state law claims are inapposite. These cases involved damage to
baggage that occurred outside of the airport, either in ground transpor-
tation or in a warehouse. See Read-Rite Corp. v. Burlington Air Express,
Ltd., 186 F.3d 1190, 1194 (9th Cir. 1999); Victoria Sales Corp. v. Emery
Air Freight, Inc., 917 F.2d 705, 707 (2d Cir. 1990). Thus, the events did
not arise in connection with “international transportation” of the
baggage by an airline. More significant, these cases do not address
preemption under Article 24 of the Warsaw Convention as amended by
the Montreal Protocol No. 4.
App. 23
agent, it is also proved that he was acting within
the scope of his employment.
Article 25, by its express language, removes the damages
cap on air carrier liability when a defendant has engaged
in intentional misconduct. “The Warsaw Convention
provides the exclusive remedy for claims arising out of a
carrier’s intentional misconduct.” Dazo v. Globe Airport
Security Services, 295 F.3d 934, 940 (9th Cir. 2002) (citing
Carey v. United Airlines, 255 F.3d 1044, 1051 (9th Cir.
2001)). “If a plaintiff establishes wilful misconduct by the
carrier, Article 25 lifts the Convention’s limits on liability,
but the Convention remains the exclusive source for the
plaintiff’s remedy.” Jd. The preemption ruling in Tseng has
been held to be “all encompassing — there is no exception
for an injury suffered as a result of intentional miscon-
duct,” Carey, 255 F.3d at 1051. Article 25 does not create
an exception to preemption. See also Bloom v. Alaska
Airlines, 36 Fed. Appx. 278, 280 (9th Cir. 2002) (holding
that the Warsaw Convention creates no exception for
intentional conduct). Mbaba’s intentional tort state law
claims are preempted and he cannot obtain recovery for
the fees and damages about which he complains.
IV. CONCLUSION AND ORDER
Mbaba’s state law claims are preempted by the War-
saw Convention. Accordingly, the complaint in this case
must be dismissed.“ It is therefore
“* Mbaba has not asserted a claim pleaded expressly under the
Warsaw Convention in his First Amended Original Petition, the
operative pleading in this case. The facts alleged in that pleading, as
well as in Mbaba’s Affidavit submitted in opposition to the summary
(Continued on following page)
App. 24
ORDERED that Defendant Society Air France, s/h/a
Air France Airline’s Motion for Summary Judgment [Doc.
# 29] is GRANTED. It is further
ORDERED that Defendant Society Air France, s/h/a
Air France Airline’s Motion for Separate Trials [Doc. # 32]
is DENIED as moot. It is further
ORDERED that Plaintiffs’ claims are DISMISSED
with prejudice. It is further
ORDERED that Mbaba’s Motion to Compel and for
Sanctions (Doc. # 33] is DENIED as moot.
The Court will issue a separate final judgment.
SIGNED at Houston, Texas this 29th day of March,
2005.
/s/ Nancy F. Atlas
Nancy F. Atlas _
United States District Judge
judgment motion, demonstrate that he cannot do so under the substan-
tive liability provisions of the Convention, Articles 17, 18 or 19. Thus,
leave to amend is not warranted.
App. 25
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
EDO GEORGE MBABA et ux §
PATIENCE MBABA, - §
aoe §
Plaintifis, § CIVIL ACTION
¥. $ NO. H-03-5430
SOCIETE AIR FRANCE, s/h/a &
AIR FRANCE AIRLINE, :
Defendant. §
FINAL JUDGMENT
In accordance with the Memorandum and Order
issued this day granting Defendant Society Air France,
s/h/a Air France Airline’s Motion for Summary Judgment
[Doc. # 29], it is hereby
- ORDERED, ADJUDGED AND DECREED that
Plaintiffs EDO GEORGE MBABA and PATIENCE
MBABA’s claims in this case are DISMISSED with
prejudice.
This is a FINAL JUDGMENT.
SIGNED at Houston, Texas this 29th day of March,
2005.
/s/ Nancy F. Atlas
Nancy F. Atlas
United States District Judge
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