# Petition for Writ of Certiorari — Mbaba v. Societe Air Air France (No. 06-566) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1644%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2007 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1644%3A1. Public record. Not legal advice.