Bates Block v. Compagnie Nationale Air France

WISDOM, Circuit Before JONES Judge. BREWSTER, Judges, District Judge: WISDOM, Circuit Boeing 3,1962, an Air June France leg beginning jet of an final liner Trip “Jet Atlanta-Paris-Atlanta Orly Field, Paris, (1) Air Louvre’ crashed at France three defenses: asserts governed Everyone aboard was killed. France. War The 122 were all members saw ratified and adhered February limiting States, recovery the Atlanta Art Association. the United 2, 1962, per into the association had maximum of for each entered to a $8291.87 Agree- Flight killed;1 (2) an “International Charter the contract of car son riage Flight (as for to ment” with Air France the airline set in the forth poo plane both) flight Agreement furnish the for the the or in r the $36,000. explicitly incorporates of the cost reference limitation; (3) of law the Warsaw plaintiffs forty-five The instituted ac- gov occurred, France, accident where the against for Air deaths tions France the case, the law under erns the and French sixty-two passengers. of of These the applicable. limitation Warsaw Fed.R. actions were consolidated under 42(a) of lia- Civ.P. a determination plaintiffs the The contend that bility, separate the on trials to held apply to does not Convention Warsaw damages. of issue Accordingly, flights.2 they a filed charter 1. The Warsaw Convention. Art. limits of international air carrier 82, col. 1 late to affect passenger’s Air Prance delivery The Press of the Warsaw limitation of United States and the establishment rangements 1965; herence. See agreement, ment delivered a Notice The United States did had ment, ment ence the Conference. State notice of denunciation with before the denunciation About 3026, p. Warsaw, effective, of tled 1934, the United States Senate tional Por November Certain Bules decedents approved Convention, “A to the Convention and October President Boosevelt Transportation $8,300 limitation Press Belease ninety see Convention to the effective representatives 3013 Convention N.Y. Poland, (city ed.). remains the Civil signed the tickets ticket must 15, between the Belease air countries now adhere to United (1935). Convention, officially enti- 49 U.S. of more here do failed No. Times, 1965, as May June carriers, $75,000. agreement 3(2); Belating liability in effect supplemented by 268, October States withdrew by Air” was Aeronautics Board No. the State agreement 15, 1934, of 15, Stat. at May large mаjority of Nov. provisions permanent Nov. the state Art. receive 23 countries at Polish proclaimed advised adher- increasing the 268, proper participate in 1966. governments. Denunciation contend Dept. 14, 16, to Interna- pending liability. Unification to become 12, apply, announce- 3(1) 15, L. 3000- Nov. however, 1965, p. Depart- case. Govern- liability proper notice signed Dept. State 1929. (e). day too ar- ad- 29, 15, it. ly weeks American executed notice Com. before Agreement.” iffs, lished lease, No. American senger L.Ed.2d 620. Art Association liability ity Inc., granted, Haliane, S.p.A., trates ed in regulations, in such 1966. “Chtr passenger taken “Carriage * ger quirement. ticipating The ticket must be Second Flying Tiger of P.2d thicket charter Lacey, * * limitations ticket similar conditions of 851; 9 Cir. ten-point note of the before the limitation Contract”, must now receive In November 1961 The Circuit has of ‘conditions of Contract’ rules take out insurance. Mertens a manner as to enable 387 U.S. in the charter Charterer declares that limitations. February and Express flight Beeent Warren v. (Art. furnished herein is purpose 66-61; requires and undertakes language departure Lisi v. Lines, 1965, April relating The foreign airlines, each By agreement among 28 type 1966, began working with the 3(2)) [Warsaw] (Art. accident. See “Lilliputian print carriage 901, were provisions Developments tickets, recently Company Inc., 352 delivered in time Paris. The Alitalia-Linee 382-6031, 2, advising Flying Tiger 370 P.2d 1963, 3 87 May but actual CAB flight delivered to (1) 1962, P.2d 494. 2 Cir. only delivery liability J. S.Ct. shippers par and each each held that notice (e)); delivery three weeks of said Convention. 9 him of the Air L. & under a bring Press-Be- 508, rules provides: 1965, May 31, 1687, general contain charter, Atlanta arrange passen marked in The ” subject he Lines, ^[3] Aeree estab print liabil frus cert. pas this The tar and 341 has and six re 18 of v. presumption entitled to the summary judgment partial for a motion liability seeking judg contained Fed.R.Civ.P. against France, part striking dismissing Air each ment carrier, applica France, would be Air asserts the defenses that district bility to the limitation entitled of the Convention. Block v. Com- in the Convention denied motion. also contained court France, against passengers.” pagnie N.D.Ga. Air Nationale F.Supp. found: The court affirm. The Warsaw Con We Flight the Charter “Under terms of applies to trans vention the international Agreement Air furnished all Francе portation passengers under a contract crews, fuel, etc.; and no “voyage” flight. on a passen- unless such was to be carried damages plaintiffs’ recovery ger by Air had a been issued ticket to cases instant therefore The International Charter France. treaty. the amount allowed We isthat adm Agreement was made to unnecessary pass upon it Air find to approval the Civil Aeronautics France’s other defenses. * ** Board, From evidence presented, appears' now there I. are no to substantial differences as At the time the Warsaw Conference arrange- surrounding the facts held, Mi October civil aviation was Trip ments of the ‘Jet to the Louvre’.” infancy.3 Lindberg in its had flown correctly The court limited the issue: years Atlantic two before. The sole con sup international air in the United heretofore, “This Court in various operated flights States between Havana hearings, has noted that there are var- Key and West.4 The United States de- possible arrangements by ious which a clined an invitation to attend the Confer- flight might charter be made and the although ence, observers, it sent two John question therefore is not ‘Does the War- McCeney Ide and Werlich. apply saw generally to flights’, charter but The Warsaw Convention was the result ‘Does the apply Warsaw Convention work, preparatory of extensive commenc- particular flight?’” with the first Interna- Conférence mer The court Aérien, held: tionale de Droit Privé held in Paris in ap- 1925. The Paris Conference “[U]nder the factual situation in the * * pointed * experts a committee in inter- cases at hand where Air law, national air the Comité Internation- France, carrier, owns, air operates, Technique d’Experts ale Juridique Aér- and and, prior controls the aircraft (Citeja), officially iens translated departure, proper delivers tickets United States documents as “Interna- passengers passage, for their tional Technical Committee of Aerial Le- Warsaw Convention applica- would be gal ble, Experts”. Citeja primary passenger has had re- passengers stages operations of about 500 miles. The ad- “The total most airline in the five- year popular period vanced and air- United States 1925 to 1929 —in domestic craft, Vega, foreign as the Lockheed which carried only well as travel —were 400 passengers pilot, passenger six million and had a cruis- fatality miles. speed ing per per of about hour rate 120 miles passenger 45 million 100 ” * * * range compares and a miles. about 500 miles. This with the rate of Mendelsohm, per Lowenfeld and The United 0.55 fatalities 100 million States and the Warsaw 80 Report miles in 1965. 1965 Annual Harv.L.Rev. 498 the ICAO Council to the ICAO Assem- bly larger 13. The could car- airliners Wright, Dam- The Warsaw Convention’s ry cruising speeds age Limitations, 1957 Clev.-Mar.L.Rev. per of about 100 290-91. miles hour and over mitting preparing draft conven- Warsaw Convention sponsibility for 1934, explained: on conferences United States Senate in to various tions submitted transportation.5 Ameri- air principle of “It is believed that present Paris at the were ity can observers limitation of liabil Citeja meetings dur- and at Conference shippers suffipassengers beneficial in and through years From affording definite basis a more appointed on, of- the United States recovery tending litiga and lessen representatives Citeja. ficial tion, prove to be an it will prepared preliminary Paris Conference development aid in the of international liability of air draft convention on the transportation, air as such limitation assigned topics certain carriers will afford the carrier more definite study Citeja. further of these One equitable basis which to obtain topics aéronefs”, gen- was “location des rates, probable insurance re meaning hiring renting eric term eventually fin there would be a and, chartering sometimes, airplanes.6 operating expenses reduction of advantages carrier and travelers pri- The Conference achieved its two shippers way of reduced trans mary objectives: (1) uniform re- rules portation charges. prin lating to air documents ciple placing the burden on the car check, (passenger ticket, baggage negligence rier to show lack of in inter waybill); (2) limitation of the carrier’s transportation national air in order to airplane for an accident. In ac- escape liability, seems to be reason complishing objective, the second the Con- able in view of which a recognized quid passenger ference establishing need for a has in the cause pro quo by of an еstablishing transportation.” presumption accident air liability, thereby shifting the carrier’s II. proof the burden of from the face, On its the Warsaw Convention (Article 20.7) to the carrier. Sec- seems to cover all international retary Hull, by State air, Cordell trans- any without limitation whatever. Ide, History Accomplish- 5. See performed and by tation an air carrier Citeja, ments of the Air L. 3 J. & Com. where the entire of one or more as (1932). Mr. Ide was the engaged United aircraft has been for the move- * * * Citeja * * * (1929-31) persons States observer at and ment of or property at the mileage Warsaw Conference. trip on a time or ba- R-419, sis”. Title Part E 6. The and the defendants dis- 13249, Sept. 24, F.R. pute the translation of “location des meaning Exemptions. aéronefs”. The literal is “hir- 7. Article 20. plaintiffs’ (1) aircraft”. transla- The carrier shall not felo liable if tor, defendant, by proves who was also used agents he that he and his “chartering translated the term necessary as taken all measures to avoid Later, by affidavit, aircraft”. damage he aver- impossible or that it was red : “The most accurate translation of him or them to take such measures. English (2) the French ‘location’ transportation word into goods In the * * ‘hiring’, ‘leasing’ ‘renting’ baggage or *. the carrier shall li- not be proper Correct and proves translation of the damage if able he ‘chartering’.” French word by piloting, ‘location’ is not occasioned an error in the However, legislative history handling aircraft, naviga- or in that, the term was respects, some- tion all other he chartering times agents used necessary include and his have taken all interchangeably sometimes used with “af- damage. measures to avoid the (chartering) frétement” “charte” Comm, Foreign Relations, 8. Senate (charter). Regulations British define Message from the President of the Unit- transport “charter service” as air serv- Transmitting ed a Convention for States “under a ice contract of hire”. Civil Rules, the Unification of Certain Sen. Regulations, (Licensing) Aviation G, Cong., Exec. Doc. No. 73d 2d Sess. No. 2-2. The Civil Aeronautics Board trip” transpor- “charter defines “air 3-4 scope postal conven- 1(1) terms A. Article states Second, “inter- treaty: tion”. Article 34 excludes performed transportation by national air apply in- all “This convention shall by by way experimentаl navi- trial air transportation persons, ternational gation enterprises with the view goods performed baggage, air- regular lines of air navi- establishment of apply equally shall craft for hire. gation”. Third, also excludes Article 34 gratuitous transportation air- “transportation performed in extraordi- transporta- performed an air craft nary normal outside the circumstances added.) (Emphasis enterprise.” scope of an carrier’s business.” trans- (2)1 defines “international Article exception portation” third : encompass arguably, might Air that, convention, purposes of this “For the however, flight. provision, This France transpor- expression ‘international to have a from the start was intended any transportation tation’ shall mean placing very application. narrow according which, the contract conference, convention before draft place parties, de- made Rapporteur Belgium, cert. Henri De Vos destination, parture place Conference, gave example of an in the whether or not there be break “extraordinary” rescue an situation dis transshipment, pick up passengers mission sent situated either within the territories flight baggage had from earlier High Parties, Contracting two or with- described such been forced down. He territory single High of a Con- not be as one that “could rescue tracting Party, agreed if there is an 10 Pro- made under normal conditions.” stopping place territory within a sub- Georges delegate Ripert, fessor ject sovereignty, suzerainty, 34, explained France, author of Article authority power, mandate or of another exceptional in such circumstances though power party even a is not requirements certain established to this convention.” Convention, delivery of a as judge The district found Article so check, baggage could ticket and concluded, language clear that he “[T]he delegates not be com- observed.11 Several contained in the Warsaw Convention plained open provision a this ambiguous, and deems [the court] dangerous loophole in the Convention.12 unnecessary to resort to a discussion of allay fears, Ripert To their Professor legislative history Treaty.” of exception a stressed thаt this was not loophole.13 broad Just before the confer- B. The Convention makes three ence was to take a final vote on Article exceptions sweep to the wide of Article Giannini, Italian 34 Amedee head of the 1. None covers this Air France charter Ripert delegation, had flight. who cautioned First, 2(2) Article excludes dangers “transportation in the performed earlier about inherent (Stockholm 1961), English made 9. ment 261 n. 83 This is an instance where the part help- oi below. the record translation is awkward and it provision original ful to read the 10. Internationale de Droit II Conférence présente French “La Conven- version: Aérien, Warsaw, 4-12, Pro- Oct. Privé applicable tion n’est aux trans- p. cés-Verbaux ports effectués dans des circonstances opér- extraordinaires dehors de en toute 11. Ibid. Sexploitation ation nórmale de aérienne.” relation”, Sundberg “The others have and Alfred Dennis statements Sir See pointed out, partic- “is there Britain, Saba- id. at and of Great type ular carried on of business Russia, id. at 58. nine carrier, general but nature interchange Ripert exploitation”. Sundberg, Air aerial See 13. See Study Legal Develop- Italy, id. at A Giannini Charter: and flight and charter difference between a narrowness emphasized the provision,14 flight. ordinary an scheduled commercial provision.15 developing of this gates such as ordinary been opinion. the Conference the one before in the sense that rare, industry. Although they treaty was to were never See were us charter and Section might once apply to a well they their dele flights aware extra VI were may than to from plane, ter the In a ^[4] use it “bare-hull”, “hire”, without country owner Looking traditional divided where (airline) merely supplies crew, into basic to the realities country, and concepts, to a charter when or “lease” char types.17 air charters he pleases; rather vary er, (1) scope of Johnairca rr the normal the charterer “outside furnishes sub crew and flights Night pays expenses operating ier’s business”.16 the air flights “exceptional” (2) were craft. In transatlantic a “time charter” the air provides jet flights unknown, equip line charterer with ped plane applicabil specific period for there is crew no ity of time to re as the to a trans charterer wishes. Warsaw Convention p (3) unish“voyage jet flight night. In charter” atlantic owner fully equipped plane charters his C. Had the Warsaw framers intend- predetermined voyage. for crew In a exception ed to create an for charter voyage charter, such edu entered flights why applica it is difficult did see by Air France and the Atlanta Art As specific provision include a sociation, operates the owner controls sen they such as did in Article effect, In aircraft. the middleman is specu 2(1) for conducted eliminated, except purposes nego postal terms of re tiating Although the charter. erare charact vention experiment- and in Article 34 for types charters, these three basic of air extraordinary flights. al or There is no analogous somewhat to maritime char except valid reason flights. all charter degrees ters, control, discretion, charters, perhaps, some responsi- responsibility of the charterer can bility is so problem divided as to create a normously case, from case to cue determining who is the carrier arrange the extreme bare hull charter purposes of the Convention, but where relinquishes ment which the airline problem exist, voy- does not way as in a total control all the age charter where the (airline) owner this case where the to charterer’s role is also operator, practical tally physical op there is no unconnected with the Sundberg, Study Id. at 58. Air A in Le- Charter: gal (Stockholm Development 261—262 15. Id. at 145. 1961). Coquoz, See also Droit Privé Le early 1933, Blanc-Dannery point- 16. “As (Paris 1938). Internationale Aérien 165 flights ed out that taxi were not application “The whole of the properly category in the Article 34 furthermore, of Article operations. compagnies ‘Toutes les aéri- Hague Protocol loses interest. This ennes, client, á la demande d’un provides font prop- le Protocol that as to cases conduire a oh erly fitting l’endroit il desire. On ne under Article it is not the peut que transports dire ce sont des whole of ex- is réguliers pourtant et ils bien rentrent cluded, only but 3 to of the Articles l’exploitation dans le cadre de aérienne documentary chapter.” Sundberg 263. nórmale.’ La Convention et de Varsovie categories 17. The three charter regles transport les due aérien interna- widely recognized, Gronfors, Air Charter tional, p. thése Paris 20. What the Warsaw Convention 15-16 flights was true of air taxi is Hague 1956); (Martinus Nijhoff, The certainly today. true of charter Drion, Limitation Liabilities in Inter- type Whatever of the air commerce 1954); Hague (The contract, national Air Law success business volume application Sundberg. exclude the 34.” of Article kennecessity Bla flight. points made.” of de in Paris should be If the eration uniformity, maintaining stopping places, Dew hen destination parture, country, charter, applied in flight the Convention is are not stated in of a having States, flight Ar a doc within the United would not come such as legal system nothing different in Arti trinal basis for its there is ticle 1 But systems, compels a broad Con from civilian cle or other article applicability of of the Convention. construction vention that bar voyage kind to a charter of the III. Air France and entered into between Atlanta Art Association. not does ex- The Warsaw Convention pressly or charter mention charters title Conven D. The of the argue flights. plaintiffs that even The only purports apply tion is modest. It except- provision specific if ing is there no relating transpor to certain to air rules coverage flights from the charter observes, Sundberg tation. As therefore: the Conven- the Warsaw points “On unified rules covered tion, apply Air still does ex one would then [of Convention] flight cover- France-Atlanta because pect to find of law rules. The conflicts age premised upon con- is a direct however, agreed Conference, up which, relationship tractual provisions on conflicts of laws gist contend, The does not here. exist special discrep five cases. . The . . argument of this only that Article 1 refers ancy explained by hostility the utter “transportation accord- displayed by which was Conference parties; to the contract” between relating to conflicts of laws solutions.”18 the Warsaw Convention assumes mind, With this “basic tenet” the Con ordinary two-party existence of an con- ference “in drew French carriage tract of between the airline and single 36.) copy”. (Article in a passenger; re- since this Large Statutes at for 1934 indicate that sulted from a Air charter between France it was the French text to which the Unit Association, req- and the Atlanta Art ed States adhered in the instrument the relationship uisite contractual deposited United States in the archives the airline and the does Ministry Foreign of the Affairs of exist. (1934).19 Poland. 49 Stat. 3013 binding meaning of applicability the terms is the of the Convention un- legal meaning. principle deniably French premised “The upon contract, but primacy legal system particular French on a contract of a kind. harmonizing thus means a construction is based on a contract of principle relationship Convention.” This arises from the between a extremes, should not be carried passengers.20 “carrier” and the This con- “[u]niformity may relationship requires only with maintained tractual many disputes whether, out futile as to the carrier consent to in- undertake the why, teachings and when passen- resort to the ternational quotations paragraph 18. kins, in this are The Cause of Action Under Sundberg from 242-249. Air D. & 26 J. 217, (1959); and Da- Com. 219-20 Riese 15, 1934, However, on the text June 19. cour, (Paris Précis de Droit Aérien 233 Senate, that was read to the and to Goedhuis, Airlegislations 1951); National ratification which resolution of was (The directed, original- ‍​‌‌​‌‌‌​​​​‌‌‌​‌‌​‌​​​​‌​‌‌‌‌​​​‌‌‌​​​​​​​​​​​‌​‍English and the Warsaw a text in was ly published Treaty Hague 1937); Sullivan, in a Information The Codification Department Bulletin of the of Plaintiff- Diability by State International Air of Convention, Carrier Cong.Rec. March 1934. 78 77-82 Air D. & 1—2 7 J. Com. #115 68, (1936); Coquoz, supra at note Lureau, Responsabilité du Trans- 99. Da 20. 1961); porter (Paris Cal- Aérien 84 origin derlying another,21 concepts designated spot civilian to ger from in views much of the difference consent and that in turn and among jurists Citeja the dele- on undertaking. situa- In a charter gates is to Warsaw attributable un- passenger’s of action cause tion the conceptual of laws differences on is based der the France, Italy, Germany, carriage (the Scandi- sale of this contract nothing countries,22 say of the navian purchase transportation), not on theory. difference between civil law tort common law. plays look role contract We now the A. did not achieving It clear that framers objectives is of the Confer- bargain encourage intend note, to endorse passing, the un- ence. We do, give, certain or not to do a 21. in- “The draftsmen of the Convention tr.) thing.” right Cachard create action based tended to a * ** Quatre carriage, es- conditions sont “Art. 1108. on the contract of pour cursory reading la conven- sentielles validité d’une text of this will Even tion: the reader that the French law convince of contractual partie qui liability Le de consentement la carrier of the was s’oblige; governing basis of the intended to contracter; capacité Sa de cion convention. Thus Asocia establishes qui objet certain la matiére period during Un forme convention which the * * * Comm’n, l’engagement; apply. de Article 26 also 1’obligation.” right Une cause licite dans demonstrates a contractual (“Four conditions are essential to action under was intend- convention validity paragraph of a contract: first ed. Democrat clause of party loss, accident, damage binds consent of the who case reads—‘in Gwinnett the himself; may delay, liability action not capacity contract; against except His instituted carrier object special forming A (Em- the substance the lasts phasis supplied). this convention.’ agreement; rights of the Outside tort obligation.” exception. A Ca- licit cause for were excluded to one tr.) chard This is found mediately material which im- in draft Article 26. follows great may Today be- There be as a difference ‘willful we refer to it as the mis- Italy provision, inappli- tween laws France and makes conduct’ provisions laws of France and the between the cable the Conven- speaking, liability. Generally In United tion as exclude or limit draft, however, States. countries, quite civilian whether not clear all was law, defined codified have tended toward claims were to be under convention categories damage “char- of contracts. The term unless the arose from an in- illegal term. des- ter” not a civilian tentional act to which the variety legal short, ignate re- innominate carrier was liable. actions very arising lationships in- well which do fit out misconduct willful categories. a char- civilian If carrier were be based on national law classic lease, (charterer) has than on ter the the lessee rather the contract. is a liability; goal sought tort if it is a burden of unification was with unremitting carriage, the carrier has zeal-—-that the intent contract was Riese, suрply Luftreeht burden. See unification a contractual right liability (1949); Sundberg of action under which non-per- According and of law of France to be absolute in case of formance, many negligence negli- measured countries Calkins, gence supra harm but a contractual tortious carrier.” 218, 223, breach. is found- note “Contractual obliga- non-performance ed in The Code Civile of France defines simply: flowing tions contract contract transport persons third have or “Art. in which 1101. Le contrat est une con- plusieurs contracting par laquelle possess simple une ou status of vention personnes s’obligent, une the carrier undertakes envers ou plusieurs donner, carry autres, á or merchandise á faire ou á journey. security throughout pas quelque (“A the ne faire chose.” con- absolute Such spe- agreement being by obligation an without tract is even one stipulated subsists, persons cifically in case several bind themselves to- places persons non-performance carrier in wards one or several other parties.23 between the The Conven make much of the fact inadequate passenger’s 1(2) tion assumes the that Article does contain a refer- ability bargain.24 by par- de made Conference ence to “the contract many pro- bates contain ties”. But in a allusions to the bar this reference is gaining defining transpor- passenger.25 weakness of the vision “international tation”, purposes Within the for context of being dependent permit upon places issue as which the are departure negotiate raising agreed by ted to li and arrival ability limitation, parties. object requirement and here the Conven of this applicability tion does not refer to “the contract” as of the Convention provisions it does in thirteen other but be known in advance and speaks “special agreement” dependent upon place rather or, of a be where original plane might happen in the and official French to crash-land. version, spéciale”.26 English 1(2) “convention translation Article reads as follows: Since the Convention does not antici pate bargaining primary (2) purposes between the For two of this con- parties, vention, participation expression it doеs not limit in “international negotiation transportation” any of the contract to these shall mean trans- parties.27 portation which, according two Thus the Convention re parties, place fers contract existence a contract made many places, departure place but never once describes and the of destina- solely tion, pas this contract in terms of the whether or not there be a break senger in the transship- carrier. There is no War or a objection ment, per saw Ti a third are situated either within the acting agent High son Contracting as or en territories of two tering Parties, territory into a contract carrier or within the of a passengers (“stipula single High for Contracting Party, the benefit of if there pour autrui”). agreed stopping place is an within a presently they it, role of a contractual debtor and the did not fail to do passenger Rigalt, many companies operate navigation as Prin- his creditor.” aerial cipios regime de derecho Aero be See under of contractual freedom Calkins, supra 20; and, practice, fact, they note 22. note li- able.” II Internationale 32- Conférence 1(2), 1(3), 3(2), 4(4), 5(2), 23. Articles 11(1), 12(1), 14, 18(3), 22(1), 23, 28 See also statements Sabanine (1), 30(1), Russia, p. 27; Germany, p. 85; Riese of “Any provision tending 24. See Article 23: Ripert, pp. 86-87. to relieve carrier 22(1): par 26. Article con- “Toutefois une fix a lower limit than that Defendant- is laid spéciale transporteur, le vention avec le down in this convention shall null and be voyageur pourra fixer une limite de re- void, nullity provi- sponsabilité plus élevée.” nullity sion shall not involve contract, whole airplane pas- which shall remain sub- 27. “One must consider an as ject provisions senger person this conven- whom carrier has tion.” engaged, means of a contract trans- carry portation, place to an- gee, example, for comment airplane. Thus, other on an the stow- Georges Ripert “Well, then, of France: away passenger could never termed a reality, creates, against this convention * * * and demand the Warsaw carrier, exceptional regime, the air applied. is not indis- for, world, in most of the countries pensable fig- transport the contracts of are concluded personally par- contracting ured аs regime of freedom. The car- ty. The contract could have been con- rier to insert free contract party." cluded his third favor clauses re- which exclude or diminish his Coquoz, (Em- supra sponsibility, See note at 87. merchandise well passengers. imagine phasis supplied.) You can

333 through party sovereignty, as the such territory a third do so to the authority suzerainty, of Atlanta Art Association. or mandate though power power, that another even referring by ato also clear that party this not a convention. not intend does the Convention contract agreed Transportation such an without prerequisite that consid to establish stopping place sub- between territories sense, eration, must law in a common suzerainty, sovereignty, ject to the parties ways two flow both authority mandate, same relationship can come their before High Contracting Party not be shall Even if the control. the Convention’s pur- for deemed be international pay promise make no should (Emphasis poses of this convention. trans contract of there would still be a added).28 cause, by portation, supported in a civilian original poor is a of the This translation 1(1) explicitly de se nse29 Article version, also and official French apply that “shall clares the Convention agree parties that both need states by gratuitous equally to places stopping not as- which does but by transporta performed an air aircraft imply agreement need 30 sert or Therefore, enterprise.” all single part and direct made as of a requisite contract needed to establish language, “ac- of the contract. Instead undertaking, part promise, is a cording by par- contract made transport passenger, of the carrier ties”, “d'apres reads French version passenger. consent stipulations parties”. les Thus des plays a role fundamental The contract stipulations French version refers objectives of the Warsaw Confer- (conditions) agreed by parties arising obligations from the ence. The by rather than contract to “the made pas- contract between the carrier and parties”. The French version therefore senger carry goal the Conference out would include the situation both where parties agree main same route known the rules of limited “2) ‘transport qualifié place Est interna- of ultímate destination within tional’, présente ‘High au sens de la Conven- territories of two Con- the tracting tion, transport lequel, d’aprés tout dans ter- both within the Parties’ or stipulations parties, Contracting point High ritory ‘single les des de le of a y départ point destination, qu’il agreed plac- Party’ stopping leet de with certain interruption transport way, ou non de ait transbordement, ou another elsewhere. Put es sont situés soit sur becomes the means that the Convention le territoire de deux Hautes Parties Con- when ‘contract’ law of the tractantes, parties provides passage soit sur le d’une be- territoire Contractante, Haute seule Partie une si termini. When tween certain described prévue contract, escale est dans un territoire sou- then the is the suzeraineté, souvernaineté, impact, la mis á á la full its own has automatic parties mandat au ou á l’autorité autre d’une and not because terms agreed.” Puissance Le méme non Contractante. Pan American Air- Ross v. so transport 88, 880, ways, sans une telle escale les N.E.2d entre N.Y. territoires soumis a la á la souveraineté A.L.R.2d 319. suzeraineté, au mandat ou á de l’autorité contracts, gratuitous 29. “In intention la méme Haute Partie Contractante n’est liberality exercise an act of to render pas considéré eomme au service, constitutes sufficient présente de la sens Cf. Convention.” Rau, Aubry engagement”. cause of “Paragraph of article in its refer- IV, de Droit Francais Obli- Cours Civil par- ence to ‘the contract made gations, (6th ed. La.L.Inst. tr. § means, face, obviously ties’ and on its 1965). applies applica- object applica- when the contract 30. The was to exclude the tion, applies (unless by spe- casual, but that it tion of the Convention to isolated arrangement whenever, otherwise) cial when a free ride is afforded ‘according engaged in to the contract made the business an owner parties,’ place departure (enterprise) flying. 334 knowledge rier under the Warsaw Convention.35 parties.31 enables This

to both as a in advance This fundamental role consent passenger to determine 32 needs; prerequisite per- conclusion of a con- insurance he the аmount of gauge transportation emphasized tract of is to insurer mits the carrier’s “Nothing long-term risk, accord- Convention Article 33: and act carrier’s ingly; 33 prevent and, finally, in this shall the carrier contained convention advises refusing its trans- carrier to conform as what law it need to any transporta- enter into contract of portation rationale— This documents. arrangements flight tion.” must be only agreement upon based an because flight up, To sum for a to come knowledge way necessary in that can the scope within of the Warsaw Conven implies foreseeability tion, agreed achieved— carrier must have agree- long an exists that as there carry passenger, and both the car passen- the carrier and the ment between passenger rier and the must have con ger transportation places and as to as to particular sented If route. departure agreement any arrival, and carrier prise” is “air enter third between the owner-carrier and a person, passenger paid need charterer, is irrelevant promised pay, provided or have purposes. transport the carrier has consented to passenger under those conditions. Final The common of all War- demoninator ly, passengers the airline need and saw the consent contracts of position they not have been in a where transport passenger of the carrier bargain carriage. could over the terms of (or goods) passen- and the consent of the ger (or shipper) transport airline-pas The that the take existence of the place. senger carriage repre- relationship destroyed by “The is not contract party negotiated purchase transpor- the fact sents the sale that a third and agreement signed persons goods, tation ligation A i. e. an ob- charter. - fortiori, carry airline-passenger goods contract 34 negotiator place exists when the from one For this a nomi another.” party, acting stowaway injured plane passeng nal reason a in a behalf of the ac- airline-passenger against cident Nor is the re- not recover the car- ers.36 Report Secretary State, parties, 31. 33. “It is the will of Cor- Hull, actually planе, the route dell to the President of the taken United States, Roosevelt, Franklin Delano 1934 constitutes the determinative ele- Av.Rep. 240, 242; Ide, History flight. ment classification U.S. Accomplishments prescription possesses, par- This of the Internation- involved, Legal appreciable advantage al Technical Aerial ties Committee of Experts (C.I.T.E.J.A.), settling application & 3 J. Air L. advance the 27, (1932). becoming Com. 29-30 thus independent fortuitous events. Co- Gronfors, 34. Air Charter and the Warsaw quoz, supra 16, note at 95. (The Hague 1956). 60 See Imperial Airways, See also Grein v. Riese, supra 22, also note at 246-47. Ltd., Ct.App.England 622, 1936, 1 Avi. Calkins, 635; Riese, supra 22, 233.; supra 262; 20, Jug at see note note note at lart, Traite Elementaire Droit de de Aé (Paris 1952); Goedhuis, supra rien 319 36. The contended below 20, 21; Sullivan, supra 20, note note be a rela there must direct contractual at 6. tionship pas carrier and the between the sengers appli to be See Lisi v. Alitalia-Linee Aeree Itali 8(f) S.p.A., 1966, 508, de cable. Article of the charter ana Cir. 370 F.2d acting granted, 901, 1687, “on his scribes the Association as cert. 387 U.S. 87 S.Ct. agent duly 620; Flying Tiger behalf and authorized own 18 L.Ed.2d v. Warren passengers”. Judge Line, 494, 497; Mor of all Lewis R. 9 Cir. 352 F.2d gan Flying Tiger Line, that: direct contrac held “No such Mertens v. 2 Cir. required relationship Gardner, the Con tual 341 F.2d 856-857. Cf. Legal you’re vention, going the direct con event Some Advice: So here, relationship fly London, tractual existed 43 A.B.A.J. f Boeing destroyed jet lationship the fact awith ca- and in accordance pacity payment by certain circumstances in return for a requir countries, of certain law $36,000. Art Association of Morris treated the carrier charterer “com May was scheduled to for Paris leave liability. determining in its 9, 1962. Art Association the The had developed flight out of B. The fatal right to cancel the contract uncondition- relationships: three of contractual sets ally up days to 25 that date. If before first, relationship Air between the date, the Association cancelled after that Association, Art defen and the Atlanta pay it would Air have to a can- by Charter created their “International per $3,600, cellation fee insuf ten cent of second, Flight Agreement”; in- the more the charter Air fee. France had the relationships the formal between' set of right time, subject only to cancel at pas- Art and the individual Association duty portion to return that sengers third, relationships ; be- the and equal proportion the fee of the passengers Air the and tween individual miles not France, flown. de- the airline’s concluded livery passenger personal of a to each agreement Under terms of the flight. ticket for Art had no Association control over arrangements The for char- initial physical flight; anything conduct of the flight ter in the “Internation- were made concerning operation plane was Agreement” Flight Feb- al Charter dated responsibility Air France.37 Al- ruary 2, 1962, supplementary and though the Art Association was obtain January A” defen the “Schedule dated passengers flight, for the its choice heart of an these two documents was agreement passengers way for Air France to Air furnish in bound no provision cargo transport- passengers, baggage of the International Charter and Flight Agreement ed, the charterer shall con of the Char- be for the thirty- * * qua passengers agent acted nthe as was terer. required Interruption pursuant Operation, statute. “Article or CAB * * * Association, Flight, (a) Art tlanta AIR Cancellation of FRANCE acA engaged transpor an association not over the air- shall have exclusive control directly indirectly, tation group mbers, could obtain and reserves craft chartered hereunder the discretion, rights, rate for covme to de- dis its sole Garmany, made if the charter is Asso to be flown and air- termine ports route representative agent limit, operation- used; ciation as an for group. reasons, such and The al the number of CAB - agent weight, size, type, act as for and a charterer contents value * * * Flight (c) passengers, Agreement baggage cargo. The and de of captain and compliance this case made with aircraft shall have com- was concerning plete load rule of the CAB. Without such an discretion car- rules, arrangement, under its and the manner CAB ried its distribution disapproved discharge, stowing as Charter Flight Agreement flight here involved. whether be under- or not should Association, taken, landing conti Art should be nutheAtlanta and as to where accept through its ecuted In made shall and the Charterer overex Flight Agreement captain, ternational all Charter final such decisions agent passеngers, captain nor AIR direct but neither rela any liability tionship Air arose between incur as a France FRANCE shall result of F.Supp. passenger.” each at 806. of such discretion. the exercise personnel operating (d) are the expenses agents All for AIR FRANCE and “Article 3. Costs. servants or fuel, oil, salary expense all times under the exclu- crew and crew shall remain at They landing for AIR fees the aircraft will be sive control of FRANCE. only AIR All orders from AIR the account of FRANCE. authorized to take agreements specific expenses other in connection FRANCE unless writing including transportation flight, between the have been made in charter sold whereby they accept thereon, visas, in- costs hereto customs spection fees, from char- customs duties and other certain terer.” instructions defined payable in connection taxes with the person paid Second, if France, France.38 Thus even a had the Convention. Air price agreed operator, the Art Association full owner and car- fare, person right place riage passenger. no had of each individual flight. right being Third, agreed on the That came into Air France route to only by followed, tickets, the act of Air France issu- be evidenced thus ing, passenger’s name, ordinary accepting agreed already route passenger. airline ticket. The ticket itself was not each the contract but its issuance evidenced difference between this char- relationship the contractual arrangement arrangements ter Air France. ordinary for an commercial is that agreement present payment contained the case for the trans- following provision: portation indirectly through routed However, the Atlanta Art Association. Liability “Article 8. gra- applies since Convention even to (a) Carriage furnished is herein sub- transportation, tuitous there is no reason ject relating to the rules why a contract should not exist when by established payment is indirect but comes from Relating Unification of Certain Rules passengers. Carriage by sign- Air, to International Warsaw, Poland, 12,1929 ed at October IV. (hereinafter called ‘Warsaw Conven- any The assert that ambi- tion’), unless such ‘In- is not guity dispelled in the itself is Carriage’ by ternational as defined by history treaty of the which al- said Warsaw Convention.” legedly proves that the framers intended Essentially provision same was con- flights. to exclude charter We find a plate tained the boiler “conditions of good disagreement deal and uncertain- contract” on the reverse side of each ty arrangements whether certain charter agreement “ticket”. In Article 6 of the scope come within the of the Convention. agreed Air France it would “be not, however, any We do find substantial by bound the terms and conditions evidence to the effect that all charter provi- said AIR FRANCE tickets”. The their nature and what- —whatever sion further states that the tickets creat- relationship pas- ever the betweeen the passen- ed a direct cause of action in the senger were, as the carrier — gers against “Any Air France. action plaintiffs contend, intentionally excluded by respect taken Charterer with to said scope from the of the convention. * * * tickets shall be deemed to be ” * * agent passenger. taken as A. The court below refused to issued, legislative history Before the tickets spite consider the were and de- of the agree- ground the existence of the Convention on the guage that the lan ment, obligation “unambigu Air France had no Convention was carry any passenger. feel, however, individual ous”. We that the deter mination in an American court of the The contractual establish- Plaintiffs- meaning of an international convention passen- ed between Air France and the by hardly jurists drawn continental gers by and evidenced is- individual possible considering concep without descrip- suance of these tickets fits the tion, parturition, growth of con relationship required by tion of the vention. First, Warsaw Convention. Air France way deprived The no American Law Institute Restate- its freedom Foreign contract, by of ment of the Relations Law referred to Article 33 Passengers, FRANCE, permit Carriage by ticket AIR nor “Article Baggage Cargo. baggage AIR carried unless Charterer shall baggage permit any passenger check carried un- FRANCE bas issued a to be issued a has been therefor.” less charged following person gives be overlooked the United States treaty. Each of interpreting the interpreting rule for an inter- blackletter in some measure agreement: contribute them national complete ‘pic- giving an accurate Interpreta- Function of Basic “§ setting, treaty in its ture’ of the tion. gen- so viewed it is when extent which fully comprehend- purpose can be eral agreement creates, confirms, modifies Only intelligently effectuated. ed and relationships or terminates in- say what undertake then can one ternational law determined in case treaty ‘means’.” interpretation of doubt Chiefly Hyde, Law International also See agreement. object primary of in- Applied Interpreted United terpretation is to ascertain the mean- 1945); (Rev. Lauter- ed. States ing [high contracting] in which the Development pacht, International used the terms which 124-27 International Court Law agreement expressed, having re- gard they context oc- interpret- long experience as an “In its cur and the circumstances in which Supreme has Court er of treaties agreement Arm made. This mean- singularly free record maintained a light is Arm of all obliga- of a sense the manifestation relevant factors.” probative ignore or tion to exclude Section 150 of the Restatement lists with what at variance value of evidence following factors, among others, relevant appear to en- the form of text would account, “by way to be taken into Supreme Hyde Court 1481. The tail.” guidance interpretative process”: treaties are “Of course itself has said: ordinary meaning of the words in liberally private than construed more used, the context in which the words are agreements, mean- their and to ascertain op purpose, title and statement of ing may beyond the look written we negotiation agreement, of the drafts and treaty, history of the words to the pur deliberations, negotiating records his- negotiations, practical construc- tory, party’s unilateral statement of adopted Choctaw the Defendant- understanding, subsequent practice States, 1943, Nation of Indians v. United parties, change of circumstances re- 678, 423, 672, L.Ed. 87 S.Ct. 318 U.S. 63 lating compatibility with East Arizona State v. See also State general law and law. Simi- 341, 1934, California, 54 292 U.S. larly, the Harvard Research in Interna- 1298; 735, United Cook v. L.Ed. S.Ct. 78 Treaties, Am.J.Int.L.Supp. 937, tional 29 305, 102, States, 1933, 53 288 S.Ct. U.S. (1935), states: 1929, Johnson, 641; v. 77 L.Ed. Nielsen background “The historical 47, 223, L.Ed. 607. 49 S.Ct. U.S. treaty, préparaboires, travaux the cir- canon, meaning” Speaking “plain parties cumstances of the at the time statute, applied Court as even to into, change was entered recom has said: sought in these circumstances to be ef- “When aid to construction fected, subsequent conduct of the meaning stat- as used of words applying provisions neces available, certainly can be ute is there treaty, prevail- and the conditions use, its no ‘rule of law’ which forbids interpretation being at the time may appear the words however clear made, are to be considered in connec- ‘superficial United examination’.” general purpose tion with the Trucking Ass’n, American v. States treaty is intended to serve. 60 S.Ct. 310 U.S. All that can be said is all of them L.Ed. 1345. significant arriving treaty rather interpretation particu- A multilateral at a sound in a United case, “uniform law” within the lar like a that none of them should obligation Contracting Party deemed shall States. The Court has an purposes possi- keep interpretation uniform as to be international as obligation Such amendment To fulfill and follow Convention”. ble. construction, would mean that the Convention consensus as legislative history apply to within the British Court should resort delegate, Sabanine, Empire. the Russian and to relevant extrinsic aids. opposed the amendment: Changes B. in the draft conventions Conference, “By coming that, although to this Con- indicate the Warsaw Delegation mission to had as its vention was first of kind and did Soviet defend, possible, appli- codify law, purport as far the terms applied of the Convention cation of terms Convention should be cases, exception, broadly. in- to all without 1(1) Article of the De Vos transporta- originally ternational commercial air draft read follows: tion.” apply “This to in- Convention shall British passen- Conference defeated the

ternational general goods proposal, gers, baggage consistent ob- performed jective Treaty the terms aircraft for an air hire trans- apply broadly. portation enterprise should with or without remuneration.” plaintiffs point the official C. unchanged “Convention title of the Convention—the remained until after the rejected Rules Re- for the Unification of Certain proposal Conference Brazilian lating Transportation to International that “carrier” be defined. See Section They general it opinion. Air”. contend that in IV D of this The Conference part on the then reflects limited ambitions added (all) the word “tout” and a High Contracting adopted the drafters Parties; second sentence. As Article 1 particular (1) omission reads: of reference to showed charters an “(1) apply This convention shall to all intention that Convention should transportation persons, international baggage, of flight. apply any charter or goods performed by air- apply equally craft hire. It shall post- support in There is for this view gratuitous transportation by air- Citeja in the thirties Warsaw decisions performed by transporta- craft an on air charters defer a convention enterprise.” tion premature: (1) international charter (2) were then still uncommon Although the final draft restricted “in- legal problems the char- created transportation” transport ternational complex convention ters were so that a places between parties in countries which were could not drafted first com- without Convention, Citeja, com- pleting study the sub- exhaustive menting 1(2), on Article said: ject. However, that this view assumes “The definition of types all a convention would have to cover transportation broad, has been made legal varying ef- of air charters and transportation place so that a whose relationships owner to fects of the departure place of destination passenger. charterer and of charterer to country, are situated in the same ignores position number of a international, still considered unreasonable if a Citeja assumed members and others who stopping provided in another abuse-of-discre applicability of the Conven- country, non-contracting even a one.” tion to the contract of ing result- (SJX6, 411) , voyage charter. It overlooks delegation airlines, practices proposed The British the common as evi- transporta- Article l of the draft be denced in charter forms and amended add- provision “transportation a tion documents. It underestimates both be- tween of the men who drafted the territories vision the sover- eignty tenacity authority High which or man of the cоnvention and same

339 Conference, spoke in his creating objective they held to their against proposed troductory remarks carrier’s uniformity area of complaining it provision, effect ship- to its cert. altera the Conven would be a declaration pers. attempt “merely at codi first was general at the Conference attitude codify fication, air law first effort to produced which ”* * * provision were if this and that change. On fear caution and the drafters inserted in the Convention accepted participants contrary, establishing principle that “the would be body challenge head-on the create making today is are this first effort we legislation keep pace with the that could 40 not definitive.” rapid development of air Werlich, ob- American one of the two Vos, Reporter draft De itself. Conference, said: expressed servers at the Warsaw presented to the understanding purpose “My of this of the introductory speech: in his this sentiment up a convention is to draw Conference of the “These are the essential traits which, although all not cover you. draft of Convention submitted pas- important more relations between before, As I said time has come transporter sengers shippers expect The ‍​‌‌​‌‌‌​​​​‌‌‌​‌‌​‌​​​​‌​‌‌‌‌​​​‌‌‌​​​​​​​​​​​‌​‍air carriers materialize. at least traffic will in commercial air give them the under- us we give on relations the fundamental juridical their writers the ploitation. base of ex- car- can be commercial air traffic daily transports Their 41 Pan American v. ried on.” Garcia taking unexpected proportions; 287, Inc., 1945, App.Div. Airways, my country alone, single airport, at one 852, aff’d, 317, 320, 295 N.Y. 55 N.Y.S.2d season, up in the summer there are den. 329 U.S. 640, N.E.2d cert. daily flights regular airlines. read L.Ed. the court S.Ct. goes The aircraft every day faster and faster stating: “The framers of Article 1 as Fokkers, so that sought to effec- the Warsaw Convention appear Farmans shall soon to be tools compact, provisions in- tuate the days. of olden We still have our provisions specifically re- clusive deafening super- ears the sound of the prac- to, scope as within as ferred wide just marine which Plaintiff-Counter-Defen the Schneider light that its fact ticable cup, speed with a of about 600 kilom- contracting high include did not (375 miles) hour, eter for and we powers all the of the world.” eyes spread have before our Dade hand, Con- which, Constance, the the Warsaw of On other the Do-X on Lake Defendants-Appel certainly just not intended possibility vention was has demonstrated arising problems in interna- tomorrow, all the countries, cover Defendant- all intra- Secretary transportation. of As tional for structures shall be established Defendants-Counter ppellees, President engineers Cordell Hull wrote to Claimant State What s-A building motors, we, jurists, Franklin Roosevelt March 1934: must for 39 do the code.” for the constitutes “This Convention on var- of a of conventions proceedings first series Later in the the Polish subjects private law delegation of aerial proposal ious submitted a that the from establishing will result provision which have resulted or drafters include a of the International periodic the deliberations a schedule for revision Legal of Aerial proposal rejected. Technical Committee Convention. This was Experts (Citeja), or- an international Giannini, Amedee of Italian head the del engaged preparation ganization in the egation president commission and through private air law prepared presented of a code the draft to Depart- Werlich, Report 41. State 39. II Internationale 17. Conference 579.61/2/34-35, pp. ment, 1-5. Archives France, Flandin, Id. 23. See also at id. at 28. primarily with adoption tion was concerned of draft conventions on dealing transpor- general uniform for with is taken at rules which final action liability of the tation documents and the called conferences injury purpose considering air its for carrier to the drafts.” or loss. Ide, ob- the other official American Only during Con- D. once the Warsaw example of one sub- server cites as an ject That ference were charters mentioned. Warsaw, at covered proposal in Brazilian dele- was damage of air caused carriers gation in the word define “carrier” Damage parties ground. to third on the following terms: originally parties to third was dis- shall “The carrier be considered cussed at Warsaw Conference but be- owns, manages agreement person cause who charters or of a failure to an reach joint- airсraft, individually points subject it or on certain uses was set ly transportation persons Ide, History Accomplish- aside. goods, meaning this con- ments of the within International Technical vention, conformity Legal Experts na- Committee Aerial [Cite- ja], regulation.” L. tional J. Air & Com. 38-39 brought up, however, at brought proposal This all Conference, the next International scope air the Con- charters within damage to third became sub- jointly vention and made charterer ject matter the Rome express- liable with the owner. Giannini examples subjects Citeja 1933. Other ed the sentiment the Conference: studied 1929 which were discussed beyond matter was realm of the Con- Warsaw, were the establishment of an vention. He stated: registration system reg- aeronautical proposal As far istering this Brazilian ownership airplanes; of all concerned, mortgages liens; legal the Commission felt and aerial problem this was outside realm of commanding status of Defendant- of an officer Since, Article, aircraft; convention. problem of rescue at we have Ide, supra made defini- sea. statements and Clearly, at 40. there- practical reasons, fore, tions for that is to subjects purposely certain were say private the codification air covered as is evident progressively, law is made we have to expressed the limitation in the anticipate bit, we have eer- examined Convention’s official title. The Conven- U.S.Av.Rep. If be the wished carrier entrepreneur delegation’s 43. The Brazilian statement exploiter, meaning of economic support proposal of this reads fol- control of the craft and established lows: “Since status of the air trans- German, Hungarian, juris- Swiss, Dutch portation operator differs, in- due to the prudence, etc., or that be the he should herently international character air- one for whose account aircraft craft, relating captain from rules exploited, according law; and to Danish marine, in merchant boatman in if it is wished to conform to conven- navigation, river to the carrier provided by concept solidarity tion the of communication, overland it be use- would Law, art. the the Polish between designation ful for this to assimilate the owner. multiple concept respоnsibility. as to his bring If to the it is wished to closer necessary, This is all the more as the concept general English the of formula carrier, adequate word so the to end of hire, transportation, destination, in air characterized not cor- nonetheless does concept respond exactly period contract, designations the of which to most many in used the laws of different countries. in exists the laws states goal It is used neither the French texts could North this America conventions, by qualifying of most in nor the be achieved carrier concerning damages liability equality transport.” the draft for II Con- the an p. 2; parties, presented 97; May JX4, caused to third in ference S Internationale Ambrosini, merely JX6, p. Mr. who refers to operator the owner and the aircraft. delegates. Art Asso- upon Here the other Brazilian problems touch tain qualify the carrier. in ciation could this case But since conventions. in necessity total control Air France was define the no to was there only party in colleague flight. Air France was the carrier, our from thanked we comply effort, position formal and great a to with the Brazil, a furnished who documentary requirements the Con- proposal his have referred and we France had assumed Air vention. And for its consideration. C.I.T.E.J.A. the obligations of of car- a contract all the has to taken.44 decision Thus no riage if the have assumed that would rejec- the contend that ordinary flight commer- been of an had rejec- proposal aas serves tion of this Art Association cial nature. The Atlanta the Con- between tion of connection contractually responsibility based had no flights. We do and charter vention performance for towards the interpretation. agree the What with this obligation transport the or for recognizes proposal in is that Brazilian flight. By the terms safe conduct of the problem will exist some circumstances charter, the the Association was the pur- is the carrier Warsaw as who agent passengers. the Reduction accompany- poses. explanatory note correspondingly in- role the charterer’s ing proposal points that accord- out owner-operator’s role creases vis-a- certain law of countries severаl leading passenger, to the conclu- vis arrangements charter would create country, in sion that when char- joint the airlines only agent, contract terer that the thrust even charterer or would must be between owner- liability upon whole shoulders operator passengers. At- presenting pro- itself. charterer not have been lanta Art Association could delegation hoped posal the Brazilian and 57. the carrier. See footnotes 36 clarify for all would be once and who flights is made E. Mention of charter liable in such situations. leading groundwork up to the 1929 in the give its reason The Conference did here, Conference, too, Warsaw rejecting proposal. Resolutions problems special reference Final noted that included Protocol situations, ambiguous arise regulated only and what as “who is the carrier” questions transpor- “certain” relative to liability. First At the charterer’s tation, cognizance took of the Brazilian Air Private Conference on International respect proposal “with definition preliminary in Paris Law held carrier”, adhered to the view delegates spec- presented draft was should not be settled ifying topics As to be considered. nine referred earlier, topics “lo- was noted one of these Citeja study.45 The crimi dele- matter “hiring of air- cation d’aéronef” gates may (so decided De Vos planes”.46 Citeja created make thought) that it was better to leave study and other detailed draft definition “carrier” for the courts might Citeja problems arise. work out accordance with con (sub- turn four commissions established law of the forum. committees) the workload and divided here concur Citeja meetings ^[11] discussion at Warsaw seems of this clear litigation type of enough and, later, three among signed to the “location des aéronefs.”47 years them. later and Among Second Commission was five five months May topics as- convened, have raised no doubts in minds before Warsaw Conference Reports 44. 47. first ibid. of the ses- Minutes and Citeja, sion Archives 579.6LlA/22% 45. Ibid. p. 26. at Fed.Appx. 579.6L1/24. question meetings of “location des aéronefs” subsequently, these ending discussion, Vos, primary for a was raised brief De author the Con urged by decision, vention, consistently position in a De Vos and oth- took the ers, put relаtionships it aside for a later in air date.48 charter there are two by tabling distinct “the contract contracts: contend that which exists between the members of the Second regulated by the carrier and, Citeja itself, [which Commission later ex- contract, and another pressed kept the intention the is the contract between regime the owner of the outside the of the Conven- operator aircraft and the tion. char [or Minutes of the Commission Second . What is meetings prior terer] the situation in the sec to the 1929 Warsaw Con- ond case? It should informative; be examined in a ference are not minutes separate meetings convention.” delegates the later in which the addressed themselves in more detail to Beaumont, repre K. M. In 1932 amend the issue of “location des aéronefs” are Air Traf of the International sentative more useful. (IATA) at the Warsaw fic Association post-Warsaw meetings These show a attempted Conference, applica to review with concern, expressed by similar to that delegates the Conference the delegation, Brazilian toas whether char- question Convention was intended retro terers, argu flights, not charter are covered report He c air charters. over pointed the Convention. As Drion out in replies he ed to IATA that the received book, Liability his Limitations of in In- to indicate that the “seemed Government (The Hague ternational Air Law 133 responsible draftsmen for the Warsaw 1954): contemplate did not cha Convention coming provisions “The Warsaw Convention does not within rter any all, though they

contain definition of who is to be the Convention at were attempt by quote considered ‘carrier’. An unable to from the it- Delegate the Brazilian provisions at the 1356.1 which would have definition, taking hirings Conference to insert a effect of out of mainly problems obligations imposed to take care of the on carriers ” * * * arising agreements, under charter fail- convention. IATA then support, Citeja regard ed to questionaire receive so must directed a meaning now distil the word effects sev wording system types suggesting from the of charter and eral Citeja Convention itself. consider The main whether be de following prepare choice is possi- between the sirable to an international con bilities : vention on contracts of charter and lease (a) whether, of aircraft. The IATA asked carrier is he who concluded has assuming applied the Convention his own name a contract for the flights, carriage some charter passengers goods the owner or [or] responsible appli charterer was (b) actually per- carrier is he who provisions cation of the governed by the Conven forms the tion, including particularly Convention.” con those 48. Archives ment of the That De- United States. 579.6L1A/84. partment expressed has view that 49. Archives 579.6L1A/382. provisions fair are protection air-transport IATA is an association of and afford plaintiffs point out, operator airlines. As as well as to had, course, shippers, association axe to and that if the States United grind. Secretary party But see letter fails to become air-transport operating State Cordell Hull to President Frank- lines American Roosevelt, lin dated March 1934: on an international basis will be disadvantage operating in “This Convention has been while countries studied Department Commerce, which ad- to the Convention.” U.S.Av.Rep. 240, vises adherence thereto the Govern- engagements acts, of the own-

cerning transportation documents. among them- the charterers Citeja ers selves, referred Secretary of General engagements which acts or Reporter Vos, as questionnaire De shipper or the the traveler do not bind Because Commission. for the Second acta. inter alios Reporter res having been De Vos’s pr questioned by he side with the Side Conclusion: authoritatively answering his by Con- the Warsaw rules established o-mo Citeja questions liability, in the name of there on the carrier’s vention questioned private And he association. con- with the matter connected exists a opinion or concerning of his individual transportation value tract of interpretation Citeja’s charterers, owners, that of even relations lessees, should, Never Convention. cetera, of an international can and et “Having this, added, I said subject theless he my mind, constitute give you my opinion the matter”. on part can thorough on the examination succinctly the case His letter states (Emphasis add- of the C.I.T.E.J.A.” ed.) construing the Warsaw Convention applicable to the carrier 908-09.2 course, and, Major Beaumont voyage ger relationship in a especially interested in de- airlines were flight, regardless inapplicability termining responsibility issuance for the relationships of the Convention to the transportation docu- and other tickets owners, charterers, and liabilities of the lessees, question ments, wholly from the aside pertinent part, others. respective of owner and liabilities De Vos wrote: report to the IATA in In a charterer. August 1933 Beaumont wrote: by problems

“The raised the I.A.T.A.’s difficulty interesting, is not decide note are merit an examina- “The main might the ‘carrier’ tion and form the to be considered of a who has special purposes Conven- convention. of the Warsaw charters. Usu- in connection with they challenge provi- But do not normally operates ally party who sions of the Warsaw Convention itself. the ‘carrier’. the aircraft will be governs The latter the relations be- practical difficulty in is a such cases party tween the bility who assumes the lia- complying namely with that of one— transportation car- [the regulations complicated the somewhat transported and the one who is rier] Tickets, Baggage concerning Cheeks passenger] something or [the has Consignment air- when the again expressed undertaking. appears the “There are no view: transport air grounds for international convention. of char- that some contracts to be clear going regime liability hiring to was must come within the ter and meaning according description.” it was 1932 be altered to whether of this operator owner, IATA, the Report the the charterer or Exhibit Defendant’s to regime question: al- U-l, p. who the was was 1. * * * ways Citeja the same. Should years later, Major Thirty Beaumont ad- question be that this did not informed opinion. also hered to this See Shaw- seem to material for an International be 351(2), Beaumont, Air cross Law §§ & although we would refuse added.) study (Emphasis to it?” Oc- 14, 1933, question- February 1933, Citeja the 4, ap- IATA tober met and itself up for proved naire and the De Vos letter came the decision the Second Com- meeting Citja’s consideration at Sec- ques- mission to retain the charter-hire ond Commission. De reaffirmed his study. Vos tion for views to that the IATA seemed confuse The minutes of the Second Commission contracts, two one different between meeting February show the passenger the carrier and the and the breadth of the matter included operator other between owner heading under the “location des aéro- (charterer); the second should be exam- Cogliolo, reporter top- nefs”. for the ined, all, separate if at convention. ic, meeting questions described Italy argued Professor Giannini cover, he intended to most of which dealt “question seeing consisted in whether liability with the allocations of between charter-parties should be introduced in airlines, charterer and none air law and what should be justify apply of which failure relationship owner and present Warsaw Convention to the case. operator”.53 The Commission voted questions Cogliolopresented were as Citeja to refer the with the (1) obligations follows: What are the request put that it be Commis- charterer; (2) owner Can the agenda. sion’s assign charter; charterer contract 2, 1933, October (3) Second Commis- special govern- Should there be rules again request sion met and voted leasing aircraft; (4) Against of parties Citeja charge study it with a rights; (5) whom do third have question. charter-hire Vos majeure; De declined (6) What is the effect force Reporter project, to serve as “be- expenses Who keep bears what plane preconceived cause of the airworthy; ideas (7) which he If insurance is ob- expressed”. had ligatory, The Commission select- out; (8) who should take and, later, ed first Hess Professor Pietro Whether charter contracts should be re- Cogliolo, Reporter. quired to serve as De Vos to be entered in the aeronautical 52. (unless applicable affidavit the rec- filed tion would be ord, Major expressed opin- expressly Beaumont excluded Article ion: “In a situation in ‘A’ char- which Convention), 2 of Article 34 of the from ‘B’, passengers, ters an aircraft the car- ‘O’ would riage specific flight liability of ‘B’ on a presumption entitled to country High Party Contracting contained in the Warsaw Convention as against ‘C’, carrier, to the Warsaw to the coun- the air ‘C\ try High Contracting Party, of another entitled the limitation of country return of the first also contained High Contracting Party; (Defendant’s ‘O’, against “Q”.) wherе ‘B’.” Exhibit carrier, owns, operates and controls Citeja 579.6L1A/382; 53. Doc. Archives and, prior departure, the aircraft de- requirements (meeting livers tickets' Citeja 579.6L1A/444; Convention) ‘B’ of Article 3 Doc. Archives passage, Conven- parties’ hypotheses emphasize register.55 cer- we Cogliolo: contemplated adopted.” statements of tain selected problem “Therefore, first to be Cogliolo, The defendant observes right of ac- settled is is there a this: good Reporter, explained like against the owner not? my report February “in 1936 was a relationship nature of the which exists possible number of list a considerable must be defined. solely questions, presented for which I purpose bringing at- them the nature of Once one has established experts”. relationship, question tention It seems this a second litiga- that, purposes for Court of this arises —that of the limitation liabil- tion, Reporter’s important ity stipulated by most the Warsaw Conven- statement was: tion. the Warsaw Since Convention case, does not mention this does the If the owner of aircraft and the liability apply limitation of an when Bd., carriage operator of the air have aircraft is in leased accordance with given space out a in the aircraft to a hy- hypothesis the first or the second party, may place third where the latter * * * pothesis ? goods, his is neverthe- parties rights against Do third have entirely operator, less controlled only against the owner or the charter- may this constitute a air car- form of again, case, er? And is nec- riage and the Warsaw Convention essary rights to state what the third applies. (Emphasis add- therefore parties depending upon which one ed.) Citeja 579.6L1A/1066; 55. Archives Doc. following: carrier on would be the 297; SJX7-8. hiring In owner the relations between the * * * (conduttore) and the charterer 579.6L1A/1302; Citeja 56. Archives Doc. commercial, rules, the national civil and 328, May 1937; Cogliolo report- SJX12. competent pass of the nation which is meeting February ed: “After the applied far as on possible. contract are I received valuable observations regulation 2. International Experts. several ways: liability may be made two colleague, (Poland), Our Mr. Babin ski convention either a short observed that from the international view- sepаrate existence, through having a point, important question was that of Convention addition the Warsaw liability and that the rules of the contract interpretation Article and with a broad depended upon for the hire of aircraft 4 of the Rome Convention. 3. In case contracts concluded between the owner fully the owner has leased the aircraft equipped, operator. possible In a revision is, with its own crew might of the Warsaw Convention the hire pilot, liable with its own the owner is regulated be and at rate the contract charterer, damages oc- unless the appear of hire should on the aeronautic through curred the act or the orders of register. respect damages the charterer. With colleague, (Nether- Our Mr. Schonfeld parties joint lands), expressed to third there is following opinion: separate regulations the charterer. shared owner and for the hire of air- air- necessary. 4. If the owner has furnished the According craft are not only, pilot, operator craft without crew or he the Rome is lia- responsible only damages arising damages for for ble to third through 5. In the operator. defects the craft. the ‘fréteur’ [charterer] is the foregoing respect transportation, cases the Convention With the War- applied, may amended, cannot be unless recourse had saw Convention be but it govern or amendments thereof to additions cannot be said to the contract of Hungarian Expert accordance with Article of the said hire. The is of the opinion says Hungary, 6. If owner and the same Convention. operator airplane hiring practiced. rented to a the aircraft have is not party space question a certain in the air- There third still remains the of liabili- merchandise, ty, deposit craft for him to and it is on his entirely may transportation gov- if CITEJA concepts formulate a few directive operator, may may possible be in erned there for a serve subsequent regulation. a case form of The directive con- cepts upon application and an of the Warsaw Con- which our discussion charter referring “given hire or to contracts of This statement to a (that is, He stated: space” less air- aircraft”. than the whole appropriаte craft) ref- because in its two must be considered “Charter goods. shipment A customary Defendant- erence was forms: course, passenger, would be journey given A) charter position shipper. as a same 7)” (Art. given period B) for a charter are dealt principle, July forms “In both 1937 the Second Commission However, manner. same with in again Cogliolo’s met to consider second jour- given case again report. expressed De his be- Vos using ney, mil where charterer govern- lief that exclusively his own the for aircraft carrier-passenger relationship, ed the purposes, has the Convention Warsaw worthy primary problem of and that the applying. This considered as been study relationship the was the con- has therefore been Convention Cogliolo and and the charterer. owner provided applying generally, sidered as study. broad, others favored a exhaustive ap- requirements for its that all the feeling dominant the The was that sub- (Emphasis plication are fulfilled.” ject complex 423, added.) time it was was and at that Plain- CITEJA Doc. No. regulate SJX9, p. premature 3. to it international tiffs’ exhibit convention. Citeja liquidated re- In was Legal the placed of the Committee definitively Cogliolo’s report was never Organiza- Civil Aviation International Commission, by the considered Second appointed (ICAO). a The ICAO owing the events World War II Sub-committee, Major Beau- of which up war, led which After the war. member, need the to consider mont was Citeja removed all references to hire and the on convention for an international general from the draft revision The hire of Sub- charter and aircraft. of the the Warsaw on which report, In- the presented at committee’s working. Second Commission Hague in ternational Conference at assigned Citeja study following the the Third 1955, the contains statement: Maniatopoulos Commission.- Dr. Jean of problems During study the of “3. the Greece, proposed Reporter, the drafted a may with arise in connection bringing convention the hire and charter aircraft, the Sub- hire and charter of .of aircraft within the Conven- special one considered committee that report he tion. In his 1946 referred the Convention. arises upon possibiliy touch applying “the Convention does of the Warsaw parties name, except hire, char- in his own i.e. the vention. Contracts simple transportation contracts with terer the those of contem- regulations transport plated forbid them. CAB in No. recorded on should be therefore, practice. effect, register. the aeronautical Art could act Atlanta ‍​‌‌​‌‌‌​​​​‌‌‌​‌‌​‌​​​​‌​‌‌‌‌​​​‌‌‌​​​​​​​​​​​‌​‍Association A discussion Commission Second n willbe agent. Indeed, opportune points: court district as an indeed these F.Supp. only myself Expert fn. See col- so held. if not but all our rarity leagues defendant assert that have said that brief, reply renting arguing, that is first aircraft renders interna- cases regulation urgency, has out and the charter faded no that does tional passenger. great prevent being has each util- charterer become a matter Flight 8(f) ity part dis- the Charter on the Article the CITEJA Agreement delineates the status and determine fundamental cuss a few Agreement entered “This is ideas.” Charterer: and directive own first his the Charterer both on The defendant contends into agents European duly char- and as five statements relate to authorized behalf pas- passengers.” all ters where charterer for senger to third issue tickets (United States) air- said “Mr. Calkins damage necessity caused in no owner there was craft where carriage during serting provisions international additional dealing air- the vari carrier is not the owner Convention for with added.) (SJX14, arrangements. types (Emphasis ous of charter craft.” 7686/140, 11, p. 115. de Doc. vol. The Warsaw had been ICAO signed Zheng, deal is that must draw The inference one parties contract between the the War- concluded Sub-committee and, the Convention should applies carrier when the saw Convention * * * beyond not be extended this. The Note the owner of aircraft. falling general As to cases within Secretariat, June the ICAO charter, ly accepted he definition of prepared had Sub-committee ade believed that now assessing need for an stated regulated relationships quately be in determin- convention and contracts of car tween solved, problems Sub- riage and if there were charter con among consider, committee tracts which did not fall within relationship problems, (1) other carriage, contract of definition inter se of aircraft owner and the they Con should be outside the left relationship (2) charterer and SJX14, added.) (Emphasis vention.” passengers. However, owner one of 1, p. 7686/LC/140, Doc. vol. ICAO the conclusions of the Sub-committee’s report meeting was: the The of the next of minutes Legal Committee, Tokyo in in ICAO relationship The carrier “17. the abridged re-run the seem like an of all consignees passengers, shippers, oc that has discussion air charters baggage is, owners of case in the curred since Warsaw Convention carriage by air, of international af- SJX14, ICAO Doc. 7921-LC/143- by fected the Warsaw Convention Charter, Hire, 1. The Sub-committee lays which rules in re- down Interchange report in its of Aircraft spect carriage.” to such to the over Committee showed concern The Sub-committee considered general. problem the of air charters reference an exami- terms of called for not, plain the But this concern does as aspects chartering, nation of all a task contend, all tiffs show that complex attempted in too the short to be scope beyond the of the Con are Hague time available before Confer- said, of France vention. As Garnault ence. Instead it directed its attention to necessity “The for the new Convention single point a con- whether clause by precision in a lack of was determined cerning charters should inserted and because Warsaw Protocol to amend Con- actually, finding was, who a need out vention. The Final Act of Confer- protected by person Convention”. ence states that matter was too com- stated, The the difficult Sub-committee plex permit such a insertion of aircraft, problems arise an “when Protocol, clause in the but part space char in an aircraft is by should be further studied the ICAO. ques The or hired a crew”. tered with apply. not, Does is the Convention Jr., Calkins, Mr. Nathan G. Chief is, re as the Committee the International Rules Division respective ported, “the liabili are What Board, Civil Aeronautics and head of the hirer and charterer or ties owner delegation Conference, American respect pas the Convention agreed position taken sengers”? question is And the next Conference. He called too attention to provisions “whether in those the Con regulated the fact carrier’, vention which to ‘the relationship parties refer per carriage. or the hirer is the contract of owner charterer or given of car- of t the character of contracts son meant”. Chairman he riage and, such, approach took the same as as covered Committee Delegation thirty years be He has commented: the Brazilian Convention.57 fore: applicability of “The [the dead way of adopt than to our “Rather a new convention to charters] Warsaw thinking, * set * possible poorly since stated would it making problem same result achieve the is not whether proper and applicable F.3d ‘charter’

authentic Gon meaning In such especially ‘time charter’. carrier within the Con- is certain: Warsaw Convention.” the answer case apply. add- [Italics does not vention Riese, prompted suffi discussion Otto ed.] Citeja, German veteran of Warsaw say contrary he not believe that be said did can what On the satisfactory Committee draw a could called if a contract injus concept complex than more definition in essence is not ‘charter’ simple it does transportation charter. re- Richardson Australia then legal “basically ferred concepts different under the rules fall Convention; He countries”. just various thought, interpret “To contracted this has charterer private third-party convention na was mat- executes with law with a ter falls and not for Com- has chartered courts he the aircraft that mittee”. The except took no action Committee within agree study to continue its another matter.” generally. charters delegate Riese, to War- Otto German There There the matter stood in 1957. ex- saw, previously written: “Our has argu it in 1929. now. stands So (Archf pressed opinion 1939 S.137- LR S.979) Convention ZAIP 1933 history We conclude of apply charter contracts does Warsaw, Convention, before and after transporta- easy if a is to decide it ap shows that the Convention Warsaw longer up- exists, no we can contract plies voyage flight. The to a charter agree with Goedhuis hold. now We decide, courts must within the Riese, loophole here.” there exists a case, of each ca context is: Who is rr (Stuttgart 42(3), at 408 Luftrecht § ier? 1949). y. Drion, at In Professor Huibert gener- charters, Commentators Netherlands, University Leiden, ally recognize speaking, that the Warsaw by charter, however, voyage wrote: “A applies to certain charter obligation person which one assumes flights. crew, carry aircraft and with his deny Ambrosini, persons another, member of point certain Citeja by leading goods agreed upon and one Italian or to indicated be delegates Conference, charterer, to the was of car- be a contract would riage governed author of a draft convention on the the Convention. ” liability “operator” an “owner” and Limitations of Liabilities damage persons. aircraft limita third International Law Air § filed in this carefully using case, He term “car- avoided affidavit rier” (“transporteur”). this draft earlier conclusion: Drion confirmed his delegation pro- performed evi led the Brazilian “The that the fact pose pursuant that “carrier” Ambro- be defined. contract between a charter points voyage sini Jus that standard does set airline and association agreements usually sphere transportation been outside the Ambrosini, y. Transporte- Fletamento Revista Aero- Brasileira de Direito aereo,” náutico, p. al Com relación llamado “charter Convention, nor does

application necessary issues tickets and other traf- quality of deprive the airline from fic documents.58 There is no inconsisten- meaning cy, Con- therefore, position ‘carrier’ within gov- vention, writings whom stated in his and his affidavit provisions Conven- erned which is filed in this case. In the af- does not contain emphasized tion. fidavit Goedhuis the control excepting transportation any provision plane by owner-operator (Air agreement.” performed France) under a charter issuance of tickets owner-operator,59 “R”'. Defendant’s Exhibit which evidence the relationship direct between carrier and concluded Professor Goedhuis Daniel passenger contemplated in the Convention airplane the owner of an should be required in connection the issu- with respect carrier considered the ance Warsaw documents. charterer, because he finds himself transportation perform for the ac- Coquoz, author of De Droit Privé In- charterer; count of the charterer (Paris 1938), ternational Aerien distin- respect would be carrier with guished leasing between the of an air- passengers. The Warsaw Convention (a charter), craft bare hull which would apply charterer-passen- then governed by Warsaw, and “a man- ger relationship, not to the owner- given (voy- ned voyage” aircraft” for “a relationship. Goedhuis, charterer Les age charter) given period or for “a louage Contrats de charte et de des (time charter). time” “If the chartered aéronefs en connexion avec la Convention transportation aircraft serves for the Varsovie, 687-702; de 59 RDILC Na- person [essentially the Air France- Legislation tional Air and the Warsaw goods flight] Atlanta charter (The Hague 1937). Convention 131-36 himself, the charterer we are confronted however, Goedhuis, had reference to the transportation with an air to which situation where the charterer subcon- undoubtedly ap- tracts the aircraft or Warsaw Convention where the charterer satisfy obligations Gronfors, 58. See unable to of a discussion of Goedhuis required transporta- Air carrier Charter and the issue Warsaw Convention (no (The Hague 1956). relation be- 40-45 tion documents direct The carrier (“transporteur”) him tween or con- must able to issue necessary signors). documents. general Rules, states, “The idea behind the lead- Goedhuis three ing principles apply voyage to a of Goedhuis seems to wider extent char- apply if, agreements (where puts Warsaw Rules cannot ter the the owner contruction, they disposal because their the do of the charterer an air- of properly plane equipped specified jour- fit the charter situa- into to make a question e.., ney (i. in the does situation which is international within the Rules).” Gronfors, meaning Convention). not lend itself of the the If p. private charterer is 44. a individual who journey himself wishes to make the or opinion the 59. “His has been asked on carry who wishes to his own merchan- whether, question in which a situation dise, regarded the owner should be as a [Air an aircraft from ‘C’ ‘A’ charters aff'g carrier within the of the War- spe carriage ‘B’ on France] for the a Convention, carriage saw ‘because the High country flight from cific the reward, is international and for and be- Party par Contracting to the Warsaw Con the charterer can be considered as High country the of another vention to passenger’ consignor). (or a This car- Convention, Contracting Party to this riage therefore the comes Conven- country of the first return to the with tion. the charterer concludes con- If Contracting Party, High [Air where ‘C’ carriage passengers tracts with or France], owns, operates consignors, the and controls the charterer in this situa- departure prior tion will also be deemed to be carrier delivers a aircraft meaning Convention, passage, within the the to ‘B’ for that the War a ticket applies. owner, applicable. which thus how- would be saw Convention ever, provided cannot his relation to the ticket de the char- He states requirements upon carrier, the terer be looked a he ‘C’ meets as livered persua- Coquoz Coquoz and others his point At discussed “To plies.” this argument objection. sion is no real this the subcon- question of charterer the regard selling most tracting aircraft, His this are own bases tickets helpful. permitted relation exists direct parties, is profit third which naturally operating the airline Europe United States. but not passengers disagreed the aircraft and inside he question that It was on this cargo put Sundberg shippers points it and out with Goedhuis.61 way- ticketing Coquoz, in it. To typical proponent is a too that Goedhuis billing purely are reduced to formal general continental school Convention; setting acts in the for the the basis War- finds contract as general school Continental Coquoz system, while saw Convention’s they acts, prima facie are fundamental prefers in the actual find the basis puts evidence of the contract which flights Sundberg performed. to be system whole of the Conventional into majority Sundberg also notes that Sundberg effect.” per the issuance traffic view Gronfors, For as for com- K. other requires ments direct contract between mentators, there no is doubt that passen- Warsaw carrier Warsaw; prob- come within rela- without this direct well- lem is to determine who the car- how is tion, there cannot be Warsaw carrier rier. When the functions of a Warsaw carriage and a contract sin the sense exercising divided, party carrier But, Warsaw Convention. Sund- important has the most functions berg observes: status of “If the own- carrier.62 aircraft Convention, among Art. 3 of the this includes other and the charterer elements, carriage should answered in the affirmative. a real contract sup history Both and the text of execution of which the owner exercises prove activity forwarding agent. that when ‘C’ It his usual LiF performing carriage obligation rance] is does carriage matter practice.1 constitutes international de the charterer himself concerns 1(2) shippers. in art. fined of the Convention and It does satisfying imposed by directly obligations is in- if the charterer is matter carriage acting he has to He as a considered or is terested in the meaning intermediary. fact, an as carrier within co rthis commercial “S”.) (Defendant’s convention.” Exhibit executed per- regard to owner: is liable with he Coquoz, supra, note at 93. transported, goods all fulfill sons or per- upon view [of Goedhuis] 61. “This obligations imposed seems him fectly logically as It envisions and his Warsaw Convention carriage in terms of a contractual ob- The def- under international law ligation. engaged delegation charterer who re inition formulated regard Conference, himself Brazil at the Warsaw shipper point one held liable. above, confirms our mentioned Nevertheless, we do not share upon of car- view. the action insists [of Goedhuis]. The text riage taking view into account without contrary hand, Warsaw Convention seems Con- On the other the contract. restricting interpretation. reciprocal such a Ac- vention does determine the cording (art. to its text 1 and articles 17 in relation the owner charterer 20), necessarily the carrier is not the subchartering: it therefore will case of participated person that in the respect, has con- necessary, to consult in this tract, person but rather that exe- law, such as maritime law. common carriage. confusing cutes legal This situation The solution —it is true —does not result timely complex. to intro- It would be way. hand, obvious the other in an On pro- Convention duce into Warsaw the acts the CITEJA and of the con- uncer- eliminate all would vision which clearly enough, reveal to us ference that 17, tainty.” Coquoz, supra, note at authors did in- the Convention regulate chartering. in Sund- of Gronfors 62. See discussion This does tend complete berg, stop being ap- 306-7. “The Air Charter Convention way carrier, at in permits arrived this plicable, Warsaw if the More- text utopian figure is, course, in legal over, a rather tie that binds the owner recovery. really The Court prac- no vention barred er case would question as to issuing transportation said: “There is no serious possibility of tical longer general, applicability, the War- documents, can no transportation in- Gronfors, apply.” Air Charter and the saw Convention (Stockholm in this case.” volved Warsaw 1956). Court, effect, Mertens, the held In short, In almost all writers op also the owner who was that recog- subject of the Warsaw Convention the carrier. The United erator was charters nize there Warsaw plane airline from the States chartered of the writ- charters. Most non-Warsaw Tokyo. military transport personnel to acknowledge three-party char- ers that a questions motion for a on a One charter; them as ter is a with Warsaw flight trial a charter new was whether Citeja, is, problem who is reservation came within a United States carrier under the terms of the Conven- excluding Treaty “transportation tion. performed by the air United States”.63 V. court dismissed motion district holding reported precisely in “The fatal No decision is agree point. flight pursuant with the district court’s was an international We although however, conclusion, “the terms of by Convention”. Warsaw courts, novel, agreement, question prior other to be But ob seems Court present- served, stipulated where the issue could have been had ed, that, applicable. a similar fac- have indicated the Warsaw Convention was situation, apply.” tual Warsaw reached Cir When Mertens the Second F.Supp. at 806. cuit, the court noted that F.2d Flying The district court relied on applicabil there were “doubts as to Tiger Line, States, Inc. v. United Ct.Cl. ity of the because of Convention” F.Supp. 422, and Mertens v. “urged that because reservation. It was Tiger Flying Line, Inc., S.D.N.Y. plane regularly defendant’s 35 F.R.D. 196. Both deal with cases this instance chartered transportation United flights charter in neither case did military States for plaintiff contend that charter cargo personnel military destina scope were excluded from the of the War- transportation this tions saw Convention. The ex- courts did not ‘performed States’, was thereby making the United language history amine the or the inappli the Convention Convention to if determine the Conven- cable”. The Court held: “We are of governed arrangements. opinion, however, transpor that the performed by Flying Tiger tation was Flying Tiger States, In Line v. United Line, operator of the owner and the air two-year was whether craft, performed limitation contained in the and that it was Warsaw Con- chartering. general practice, interpretation pos- when ers in his sibility split the Warsaw carrier functions are to issue docu- persons, approach important between several ments is the most function attempt penalties would boil down to an fill view the severe attached way. possible non-compliance,” Sundberg this frame best This conceivably, situation least offers possible people three All ex- solutions. 63. Article 2 of declares: ercising apply transpor- carrier functions “This convention shall performed by legal ex- carriers because of such the state tation public ercise. The one who exercises most of constituted entities law ” * ** may these functions be car- the Warsaw The States to United adhered Or, treaty rier. the one exercises most who the with the sole reservation the that important may apply of these Ardele 2 should “to interna- functions per- that the that status. —Here Gronfors reduces tional be impetus by the of his attack on other doctrines formed 3013; United States”. 49 Stat. Cong.Rec. by taking solution, the last and eonsid- 11582 78 352 military men by unneces were who the States.” United

United States by for the travel dispelled free contract were not accu were doubts The Court’s Court, relying this, question. negotiations As to the study incident Airways, 1949, Hague on Pan American of 1955.64 Ross v. Protocol adoption the the N.E.2d held: that 299 N.Y. Thus, held the in Mertens Court a charter covered Convention Ross, pointed aims out the “As though passengers were flight, the even pecu poorly the Convention would having con military direct personnel no if it held that the limita- served were relationship airline and the with tractual liability available where though factual as well there awas even agree- proved a consensual the carrier concluding that for as contractual basis (inter the ment. It evident that Con- charterer) (the was the the United States application anticipated the vention if, that also carrier. note We liability where the limitation flights contend, plaintiffs all charter here complied 8, which, carrier obvi with beyond scope of the Warsaw Con required among things, other that vention, no reason there have been passenger ticket delivered to the Hague propose ex Protocol con a statement on trans- flights. military charter clude portation re- was rules by lating established approval cited The Circuit Second Warsaw Convention.” Inc., Tiger Line, Flying The Warren v. S.D.Cal.1964, F.Supp. rev’d flight. Ross did not a charter involve grounds 1965, Cir., F.2d 494. other ordinary an In that case the was military char- That case also involved flight, passenger’s had ticket owned, operated, The was ter. aircraft purchased plaintiff, Miss been by airline, although and controlled by agent. Froman, The Jane a USO through Military States, the United plaintiff had never seen said that she Transportation (MATS), Air de- Service no it. The court held that there was destination, official termined need for the more than carrier to show stopping departure, points, the time of delivery and the travel ticket designation passengers. The accordance with the history Court considered ticket. The “Convention has automatic Hague of 1955 ante- Protocol and its by impact, full its own terms and not be- cedents and concluded that reserva- “the agreed”. cause have so military apply tion did not chartered N.E.2d at 885. The court did hold * ** flights performed directly by contract; there no was court State”. contended relationship found there was such a applicable that Convention since was not through agent one Abraham protocol prepared by 64. “A draft was representatives thought this exclu- Legal Committee International already provided sion for in Article was Organization Civil Aviation thought at Rio de Instead, representatives September Janeiro 1953 and sub- appropriate was it more let each individ- Hague Sep- mitted to the Conference in chose, Contracting Party, ual it so if sought tember to amend Article inapplicable malee the 2 of the Convention to ‘The Con- military. read: flights chartered Ac- * * * apply vention shall not adhering cordingly, to the Pro- a nation persons, Marriage cargo baggage legal power granted to de- was tocol military authorities aircraft apply áhall not clare capacity whole re- which has been military on aircraft served such authorities.’ The natural country, XXVI, registered in that Article inference this effort to amend the (Protocol Hague Amending Con- Protocol that without vention for the Unification Certain ap- amendment the Convention would be Air, Carriage by Rules to International plicable flights, to such or at least those 1955), September 28, Hague, S.Doc. proposing thought amendment so. Cong., rejected II. 1st Sess.” proposed No. Executive 86th amendment though Conference, not because 341 E.2d

353 showing the airline’s on its face through of France Froman’s ratification Miss obligation perform the contract to actions. Abraham’s provisions of transportation courts the French decisions Two hold there- Convention. We Warsaw ap Convention that hold Warsaw applied fore that flight were the that plied the charter passengers in accord- transaction of the Air-Algérie litigation. v. flight agreement ance with charter (Ch. Fréres, Cour de Cassation Fuller Art France the Atlanta between Air and (Defendant’s Com.) (1956) civile Sect. Association. G-l); Public v. Cie. Trésor Exhibit judgment The is affirmed. In Aigle Azur, de al Grande Tribunal Sect.) (1960) (1 la Ch. stance de Seine Judge JONES, (dissenting): Circuit G-2). (Defendant’s In the Air Exhibit freight Algérie shippers jurisdiction for sued on di- case is based Federal and versity citizenship. aircraft warders had chartered who U.S.C.A. § operators. impleaded the the forwarders therefore one for case is Aigle application Erie-Tompkins principles. two In v. Cie. Trésor Public of S ere in the crash w majority opinion, Air As stated flight plane Laos andchartered on a between (1) France three defenses: asserts testi Heirs sued the and Viet Nam. flight governed by was the Warsaw case, which, both the own as in this was liability limiting $8,291.97 operator aircraft. er and person killed, (2) for each applied held court agreement issued tickets period prescriptive and that the Warsaw incorpo- passenger purporting to each recovery. 29, suits, Article for barred by provi- rate reference to the Wаrsaw holding sion, recovery our on these We do not rest restricted the amount cases, Convention, the court’s because none was limited (3) France, ana before this attention issues where law controlling accident occurred Court. was VI. such limitation law applicable. holding our on the facts We base my presents, It case the text of the Warsaw view that courts Georgia, including aids to in a and the extrinsic Federal court diversity case, reject quest in our for true are free to a limita we turned meaning Treaty. liability place tion of The Warsaw the law of the injury ap of where is based on the existence the fatal occurred and testi ply its rule a contract air own more liberal of unre between liability. pas passenger. cona stricted Pearson nd the When a v. Northeast Lines, senger transported 1962, Air of car 2nd Cir. 309 F.2d 553. contract riage transpor public Georgia, policy or not the enforced exists whether courts, pursuant tation is invalid undertaken renders con limiting liability .regardless provision charter. exists tractual of the con relationships fare-paying passenger tractual between owner a carrier personal injuries. Railway charterer and the char Southern 209; passenger. Watson, terer Here Air Co. v. Ga. S.E. Georgia Railway Lipp France was the carrier. Air France as Central of v.Co. responsibility man, sumed full contractual L.R.A. 110 Ga. 36 S.E. passengers. permit principles 673. These would recognition Georgia responsibility, probably require Air court .that litigation op France controlled the aircraft in this allow through' they might damages erated it an Air France crew. recover right established, passenger’s prove, A to be carried came in the event being doing by precluded into the' issuance and de unless so livery of an individual Air ticket Warsaw Convention.

354 meaning majority here, adopted be that beginning should of the Near generally pre- consistent “The Warsaw which is declared thal opinion it is vailing public policy than applies rather the international rule passengers a con- should transportation of one which override ‍​‌‌​‌‌‌​​​​‌‌‌​‌‌​‌​​​​‌​‌‌‌‌​​​‌‌‌​​​​​​​​​​​‌​‍it. ‘voyage’ tract of magnum scholarly opus ma- The thought flight.” a correct I was If jority persuasive I remain most agree principles, I statement Therefore I dissent. unconvinced. court judgment district Holding the view affirmed. should be state- correct

that the statement not a law, controlling I dis- rule of ment of the

sent. ex- does not flights pressly include charter within provision, nor limitation flights expressly from its excluded In the Matter of the ROUSTABOUT treaty COMPANY, Bankrupt. operation. A is to construed America, Appellant. States of light United circum- of the conditions and treaty. existing at the time of the stances No. Pigeon Improvement, & River Slide Appeals United States Court of Ltd., Cox, Boom Charles Co. v. W. Third Circuit. 695; 138, 361, L.Ed. U.S. S.Ct. Argued April 18, 1967. Estate, 332, 55 re Zalewski’s 292 N.Y. 184, 87; 27, Sept. Universal Decided

N.E.2d 157 A.L.R.

Adjustment Corporation Midland v.

Bank, 303, 152, 87 281 Mass. 184 N.E. A.L.R. date of the Warsaw Lindberg Convention was 1929. The years two earlier. The es-

tablishment transatlantic years service was in ten after the existing

treaty. circumstances aviation were such 1939 as to make it improbable that charter were contemplation

within the of those who treaty. made the meanings placed If alternative can be treaty, should,

upon adopted if

possible, be that which is least restric- rights Uni- tive of individuals. Adjustment Corporation

versal v. Mid- Bank, supra.

land The rule that invali- provisions dates contract restrict rights recover for injuries

personal prevail- is one ^generally

ing in the United States. 13 Car- C.J.S. 629, p. riers 1182. The rule founded § Casualty upon public policy. & Aetna Surety Prather, Ga.App. Co. v. 115; Lines, Philippine Air Inc. 2 S.E.2d Manufacturing Engineering Texas & v. Inc., Co., Cir. F.2d 923. 5th meaning treaty depends aof Where construction, the case upon as I think is Notes transported shipper]. [the away operated from aero- craft repre- operator has dromes where party accepts Whether the who these for- attend to sentatives who can simply is the owner malities.” period time charterer —for he this Court But on the before pas- the situation trip— eye eye De Vos: saw senger shipper (transporté) or the will changed: rights not be their and their carriage’ referred “The ‘international obligations to be continue determined pas- goods baggage ‍​‌‌​‌‌‌​​​​‌‌‌​‌‌​‌​​​​‌​‌‌‌‌​​​‌‌‌​​​​​​​​​​​‌​‍sengers, for re- the articles the Warsaw Conven- carriage by gratuitous ward, tion. 11, 12-17). pp. 1, Citeja T-l, p. 2, It was translated 51. Defendant’s Exhibit English Department and an 182; the State 579.6L1A Doc. Archives ques- the De answer Vos translation Vos’ answer to the IATA De Secretary of Commerce duly forwarded tionnaire was forwarded the U.S. Department January 9, (State Secretary Embassy Paris 579.6L1A/344; Ex- Washington Defendant’s file on December State in 33-36).” pp. 20, ‘T-2’, (State Department hibit file 579.6L- ‘T-2’, 1A/339; Exhibit Defendant’s see

Case Details

Case Name: Bates Block v. Compagnie Nationale Air France

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Nov 8, 1967

Citation: 386 F.2d 323

Docket Number: 21609_1

Court Abbreviation: 5th Cir.