United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 9, 1999 Decided October 12, 1999
No. 98-7186
Maria V. Cruz, for herself and as representative of
Gustavo Cruz and Joaquin Rodriguez, minors, et al.,
Appellants
v.
American Airlines, Inc.,
Appellee
Consolidated with
98-7187
Appeals from the United States District Court
for the District of Columbia
(No. 96cv02817)
(No. 97cv02883)
---------
Leonard N. Bebchick argued the cause and filed the briefs
for appellants.
Carroll E. Dubuc argued the cause for appellee. With him
on the brief was John E. Gagliano.
Before: Wald, Silberman, and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Silberman.
Silberman, Circuit Judge: Appellants seek reversal of a
decision of the district court limiting their recovery for lost
luggage to the amount set forth in the Warsaw Convention,
and dismissing their common law fraud and deceit claims.
We vacate in part the district court's entry of judgment
against appellants. We hold that American Airlines' failure
to comply with the baggage weight notice provisions of the
Convention precludes it from relying on the Convention's
liability limitations, but that appellants' common law claims
are preempted by the Warsaw Convention.
I.
On December 21, 1995, fourteen members of the Cruz
family arrived at National Airport, having purchased tickets
for travel on American Airlines from Washington through
Miami and on to their ultimate destination of Santo Domingo.
Prior to boarding, each family member checked two suitcases,
and was issued a baggage claim stub for each piece of
luggage. These claim stubs did not indicate the weight of the
suitcases.
The next day, after a delay in Miami, the Cruzes arrived in
Santo Domingo. Unfortunately, five of their suitcases did
not. Informed that plane weight restrictions had forced
American to leave behind some of the baggage originally
checked on their Miami-Santo Domingo flight, the Cruzes
were told that the five suitcases would be shipped to Santo
Domingo on a flight later that day. Upon their return to the
airport, however, the bags were still missing (why does this
sound so familiar?). The Cruzes promptly filed a missing
property report with American; they also profess to have
filled out, at American's request, more detailed "Declarations
of Lost Property" indicating the contents and estimated value
of each lost suitcase. American claimed that it did not
receive any Declarations from the Cruzes for over 40 days
after the Cruzes lost their luggage, and denied the Cruz
family's lost-luggage claims on the ground that they did not
comply with American's requirement, stated in its contract of
carriage, that Declarations be filed within 30 days of the date
of the loss of baggage (the "30-Day Rule").
The Cruzes sued American asserting a federal cause of
action under the treaty popularly known as the Warsaw
Convention,1 which governs claims arising out of the interna-
tional carriage of persons and property by air. They alleged
that they had submitted the required Declarations within the
30 days prescribed by the contract of carriage. In any event,
appellants argued, the 30-Day Rule itself had been unlawfully
applied to them. It was not mentioned in the tariffs Ameri-
can is required by law to file with the Department of Trans-
portation for its Caribbean flights, see 49 U.S.C. s 41504
(1997), and it was also, according to appellants, contrary to
the express and exclusive lost-luggage provisions set forth in
the Warsaw Convention. See Warsaw Convention Art. 26(2).
Besides seeking the fair value of their lost luggage, the
Cruzes sought a declaratory judgment that American's appli-
cation of the 30-Day Rule was unlawful, and an injunction
preventing American from applying the Rule to passengers
on its Caribbean flights in the future. The Cruz family also
invoked the district court's supplemental jurisdiction to assert
claims for damages against American for fraud and deceit
under Maryland law, alleging that American had a practice of
intentionally misapplying the 30-Day Rule against interna-
tional passengers to discourage lost-luggage claims.
Conceding for the purposes of litigation that it had both
lost the Cruzes' luggage and improperly denied their lost
luggage claim, American moved to dismiss all of appellants'
claims in excess of the compensation provisions set forth in
__________
1 See Convention for the Unification of Certain Rules Relating
to International Transportation By Air, Oct. 12, 1929, 49 Stat. 3000,
T.S. No. 876, note following 49 U.S.C. s 40105 (1997).
Article 22(2) of the Warsaw Convention, which limits air
carrier liability to $9.07 per pound of luggage lost or damaged
in the course of air transportation. The Cruzes responded
that American's failure to state the weight of each suitcase on
the baggage stubs, as required by Article 4(3)(f) of the
Convention, precluded American from relying on the Conven-
tion's liability limitations. The district court ruled in favor of
American and limited appellants' recovery to $9.07 per pound,
using the default "deemed weight" set forth in American's
tariffs to calculate damages when the weight of a suitcase was
disputed or not known. See Cruz v. American Airlines, Inc.,
Civil Action No. 96-02817, Mem. Op. at 16-17 (D.D.C. Oct. 24,
1997). The court held that, as American's concessions re-
solved appellants' lost-luggage claims, the Cruzes no longer
had standing to challenge American's alleged misapplication
of the 30-Day Rule, see id. at 25-26, and that appellants'
common law claims were preempted by the Airline Deregula-
tion Act, 49 U.S.C. s 41713(b)(1) (1997). See id. at 35. After
filing a motion for reconsideration and pursuing other proce-
dural avenues in the district court--including filing a separate
class action raising similar substantive claims2--the Cruzes
appealed.
__________
2 This appeal actually consolidates two cases. Both cases--a
civil suit filed by five members of the Cruz family and a class action
subsequently filed by the same named plaintiffs--arise out of the
same set of facts and raise essentially identical substantive issues.
Appellants had moved to amend their complaint as a class action
and that motion was pending when American moved for summary
judgment; because it ruled in favor of American at summary
judgment, the district court dismissed appellants' motion to amend
as moot. The Cruzes filed a separate class action (identical to their
motion to amend that was deemed moot by the district court), the
ultimate dismissal of which was largely predicated upon the district
court's substantive rulings in the original suit. Since we vacate the
district court's summary judgment order in the original suit, appel-
lants' complaint is restored to its prior status, with their motion to
amend their complaint as a class action still pending before the
district court. Accordingly, we need not address appellants' proce-
dural objections to the district court's disposition of the two cases
after it ruled against the Cruzes at summary judgment.
II.
As noted, the Cruzes seek relief under the Warsaw Con-
vention, which governs claims arising from international air
transportation. The primary issue in this case is simply
whether American's liability for losing the Cruzes' baggage is
limited by Article 22(b) of the Treaty to $9.07 a pound.
Appellants argue no; American did not comply with that
Article because the Treaty's liability limitation is conditioned
on a carrier's compliance with Article 4(4) which states that:
if the carrier accepts baggage without a baggage check
having been delivered, or if the baggage check does not
contain the particulars set out at [Article 4(3)](d), (f) and
(h) above, the carrier shall not be entitled to avail himself
of those provisions of the Convention which exclude or
limit his liability. (Emphasis added.)
Article 4(3)(f) requires carriers to include the "number and
weight of the packages" on its luggage tickets. It is undis-
puted that American did not do so. Appellants therefore
contend that American has lost its Warsaw Convention dam-
age limitation and that they are entitled to recover the full
value of the luggage.
The district court accepted American's argument that Arti-
cle 4(4) does not oblige a carrier to comply with all the
"particulars" of (d), (f), and (h) of that Article; a carrier loses
its liability limitation protection only if it complies with none
of the particulars. While acknowledging that "no other
courts" shared in its reading of Article 4(4), Mem. Op. at 11,
the district court reasoned as follows:
Article 4(4) directs that "if the baggage check does not
contain the particulars set out at (d), (f) and (h) above,
the carrier shall not be entitled to avail himself of those
provisions of the convention which exclude or limit his
liability." The Court notes that the provision employs
the conjunction "and" rather than "or." In the ordinary
case, the word "and" should retain its conjunctive mean-
ing.... Considering the conjunctive meaning of the
word "and," the plain language of this provision directs
that liability is lifted only if all three "particulars" are
missing.
Id. at 10-11 (emphasis in district court's opinion) (citations
omitted). As the disputed luggage tickets contained two of
the three "particulars," the district court concluded that
American's failure to record the weight of each suitcase did
not preclude the carrier's recourse to the Convention's liabili-
ty limits. Id. at 11.
We do not agree. Although we recognize that the district
court's interpretation is linguistically possible, we do not think
it is a reasonable construction. It is rather clear to us that
the word "and" means that Article 4(4) of the Convention
obliges a carrier to comply with each of the three particulars.
American claims that appellants were hardly prejudiced by
its failure to weigh the pieces of baggage and record the
specific weights on the baggage tags because its practice was
to weigh (and charge extra) only for bags that exceed 100
pounds.3 All bags on which no extra charge is imposed are
deemed to weigh 100 pounds. That is simply another way of
arguing that Article 4(3)(f)'s requirement makes little real
sense. There is no apparent purpose in the requirement that
the carrier actually weigh each bag and record the weight on
the ticket, so long as a carrier's deemed-weight rules favor its
passengers. Still the language of the Convention is unyield-
ing and we have no warrant to dispense with portions we
might think purposeless. As the Supreme Court has noted in
its interpretations of the Warsaw Convention, "where the text
is clear, we have no power to insert an amendment." Chan v.
Korean Air Lines, Ltd., 490 U.S. 122, 134 (1989).
We therefore reject the reasoning employed in Martin v.
Pan American World Airways, Inc., 563 F. Supp. 135
(D.D.C. 1983), relied upon by American and discussed at
__________
3 The amount of American's default "deemed weight" was
initially disputed in the district court, with American claiming that
the deemed weight was 70 pounds and the Cruzes alleging that it
was 100. At least for the purposes of the Cruzes' suit, American
has conceded that it has a 100-pound deemed-weight rule.
length by the district court. Mem. Op. at 8, 12-15. In that
case, as well as ours, a default "deemed weight" was estab-
lished in the airline's tariffs to "provide[ ] an alternative
means of fixing the amount of liability," and the Martins (like
the Cruzes) were made aware of the liability limitations of the
Convention and the availability of additional insurance. Id. at
140; Mem. Op. at 15. The Martin court, explicitly eschewing
what it believed to be the "literal reading" of Article 4(4) and
looking instead to the Warsaw Convention's "primary pur-
pose" of limiting air carrier liability, held that an "airline's
failure to record the weight of [a passenger's] luggage is a
technical and insubstantial omission ... which should not act
to extend the airline's liability." Martin, 563 F. Supp. at 139,
141. But calling the requirement technical does not reduce
its obligatory force--if a carrier wishes to assert the Conven-
tion's liability limitations.
American, trying another tack, argues that the need for
"uniformity" in construing treaties authorizes us to ignore the
requirements of Article 4(4). To be sure, several courts have
done so, see, e.g., Republic Nat'l Bank of New York v.
Eastern Airlines, Inc., 815 F.2d 232, 238 (2d Cir. 1987);
Abbaa v. Pan Am. World Airways, Inc., 673 F. Supp. 991,
992-94 (D. Minn. 1987), although since others have not, see,
e.g., Spanner v. United Airlines, Inc., 177 F.3d 1173, 1175-76
(9th Cir. 1999); Tchokponhove v. Air Afrique, 953 F. Supp. 79
(S.D.N.Y. 1996); Da Rosa v. TAP Air Portugal, 796 F. Supp.
1508, 1509-10 (S.D. Fla. 1992); Gill v. Lufthansa German
Airlines, 620 F. Supp. 1453, 1456 (E.D.N.Y. 1985); Maghsou-
di v. Pan Am. World Airways, Inc., 470 F. Supp. 1275, 1278-
80 (D. Haw. 1979), it could of course just as easily be argued
that uniformity would be served by accepting the Cruzes'
position. But even had all federal courts that had considered
the issue decided that they had the authority to ignore the
Treaty's language, we would not have joined them. If there
are circuit conflicts, it is for the Supreme Court to supply
uniformity. Nor are we the least bit impressed by Ameri-
can's claim that the subsequent amendment to the Convention
by Montreal Protocol No. 4,4 which entered into force on
March 3, 1999, and which eliminated the baggage-weight
requirement implicated in this case, should be read as "clari-
fying" the Convention's prior language. Montreal Protocol
4's luggage ticket provisions clearly amend prior law; as such
they cannot possibly be given retroactive effect by being
labeled a "clarification."
We therefore hold that the district court's interpretation of
Article 4(4) was in error, and that American's failure to
satisfy the Convention's baggage weight notice provisions
precludes it from recourse to the $9.07 per pound limit
provided in Article 22(2). Assuming American continues to
concede liability on remand, appellants will be entitled to
recover for the actual value of their lost luggage.
III.
The Cruzes also appeal the district court's dismissal of
their fraud and deceit claims under Maryland common law.
The district court threw out those claims on the ground that
they were preempted by the Airline Deregulation Act, 49
U.S.C. s 41713(b)(1). However, American raises an alterna-
tive argument--that the Warsaw Convention itself provides
the exclusive cause of action for injury arising out of a loss of
luggage during international travel. We agree with Ameri-
can's alternative argument, so we need not grapple with what
we regard as the more difficult issue of Airline Deregulation
Act preemption.
The Warsaw Convention's preemptive impact is much more
apparent after the Supreme Court's decision earlier this year
in El Al Israel Airlines, Ltd. v. Tseng, 119 S. Ct. 662 (1999).
Prior to that opinion, there was considerable dispute in the
federal courts as to whether the Warsaw Convention--which
until 20 years ago was not even understood to create a cause
__________
4 Montreal Protocol No. 4 to Amend the Convention for the
Unification of Certain Rules Relating to International Carriage By
Air, signed at Warsaw on October 12, 1929, as amended by the
Protocol Done at the Hague on September 8, 1955, reprinted in
S. Rep. No. 105-20, pp.21-32 (1998).
of action, see In re Korean Air Lines Disaster, 932 F.2d 1475,
1491-92 (D.C. Cir. 1991) (Mikva, J., dissenting)--had a
preemptive impact on state law. At one point we declined to
take sides on the issue, see id. at 1488, but the Supreme
Court has mooted our decorous position.
In Tseng, a passenger brought a claim under New York
tort law after being subjected to an intrusive preboarding
security search, alleging that the search caused her emotional
and psychological injuries. See Tseng, 119 S. Ct. at 667. The
Court held that the passenger's claim was preempted, and
that recovery for a personal injury sustained in the course of
international air travel, "if not allowed under the Convention,
is not available at all." Id. at 668. The Court relied on
Article 24 which provides that, "[i]n cases covered by" Article
17 (the Convention provision governing airline liability for
personal injury claims), Article 18 (provision for lost or
damaged luggage), and Article 19 (provision for damages
caused by delay of passengers or luggage), "any action for
damages, however founded, can only be brought subject to
the conditions and limits set out in this Convention."5 The
Court explained that Article 24 precludes "a passenger from
asserting any air transit personal injury claims under local
law, including claims that failed to satisfy Article 17's liability
conditions," id. at 671 (emphasis added). It is clear, then,
that the Convention also provides the exclusive cause of
action in cases "covered by" Article 18.
There is still the question whether Article 18 "covers"
appellants' fraud and deceit claims against American. Article
__________
5 As alluded to above, Article 24 has also recently been modi-
fied by Montreal Protocol No. 4, and now states in relevant part
that, "[i]n the carriage of passengers and baggage, any action for
damages, however founded, can only be brought subject to the
conditions and limits set out in this Convention." The Supreme
Court has indicated that this modification "merely clarifies, it does
not alter, the Convention's rule of exclusivity." Tseng, 119 S. Ct. at
674. While for the purposes of our analysis we examine the "[i]n
cases covered ... by Article 18" language contained in Article 24 at
the time of appellants' claim, we see no reason that the modifica-
tions to Article 24 would require a different conclusion.
18 of the Convention establishes air carrier liability for dam-
age "sustained in the event of the destruction or loss of ...
any checked baggage or any goods, if the occurrence which
caused the damage so sustained took place during the trans-
portation by air." Appellants contend that the "occurrence
which caused the damage" they sustained was not the loss of
their luggage, but American's fraudulent denial of their lost-
luggage claim. In other words, the Cruzes argue that the
existence of an intervening event--the intentional misapplica-
tion of the 30-Day Rule to their claims--subsequent to the
loss of their luggage brings their common law claims outside
of the Warsaw Convention's area of applicability entirely.
See Tseng, 119 S. Ct. at 673 ("The Convention's preemptive
effect on local law extends no further than the Convention's
own substantive scope.").
Here again, Tseng is instructive. Article 17, which the
Court held preempted Tseng's state law claims, establishes
air carrier liability for "damage sustained in the event of the
death or wounding of a passenger or any other bodily injury
suffered by a passenger, if the accident which caused the
damage so sustained took place on board the aircraft or in the
course of any of the operations of embarking or disembark-
ing." Tseng did not suffer a "bodily injury" under Article 17;
nor was the event that gave rise to Tseng's claim an "acci-
dent" as that term has been construed by prior cases. See id.
at 667. Nonetheless, the Court held Tseng's claims to fall
within the "substantive scope" of Article 17, and thus were
preempted. See id. at 667-68. By analogy we think that the
"substantive scope" of Article 18 must extend at least as far
as to encompass the Cruzes' common law claims. The rela-
tionship between the occurrence that the Cruzes claim
"caused" their injuries (the misapplication of the 30-Day
Rule) is so closely related to the loss of the luggage itself as
to be, in a sense, indistinguishable from it. If American had
simply asserted no reason for denying the Cruzes' lost-
luggage claim, and just refused to pay, it is clear that the
Cruzes' only remedy would be to sue under the Convention;
they would not be able to fashion an additional state cause of
action for malice or stubbornness. It follows, we think, that a
bad reason for refusing to pay--whether based on an unen-
forceable rule or not--does not alter the legal situation.
To be sure, if American's agent had hit Cruz with a
baseball bat when rejecting Cruz's claim we would not think
Cruz's tort claim would be preempted by the Warsaw Con-
vention. Perhaps even a slanderous statement uttered by an
American employee in a heated argument over lost luggage
would be actionable. But were we to permit the Cruzes'
"fraud and deceit" claims to proceed we would tear an obvious
hole in the Convention's exclusivity for creative lawyers to
exploit--a construction of the Convention that the Supreme
Court has made clear is to be disfavored. See id. at 672.
We are left with appellants' claims for declaratory and
injunctive relief, which also are based on American's alleged
misapplication of the 30-Day Rule. The district court dis-
missed these claims on jurisdictional grounds; because Amer-
ican conceded that it had misapplied the 30-Day Rule, and
there was little risk of American once again misplacing the
Cruzes' luggage, appellants lacked standing to assert a chal-
lenge to the Rule. Mem. Op. at 23-26. It also is quite
possible that appellants' claims for declaratory and injunctive
relief are moot, as American professes to have corrected its
erroneous application of the 30-Day Rule to its Caribbean
flights. Still, in the event that our remand of the district
court's grant of summary judgment breathes life into the
Cruzes' claims for declaratory and injunctive relief, we briefly
address American's argument that these claims are also
preempted by the Warsaw Convention.
American attempts to frame this issue in its favor by
depicting the Cruzes' claims for declaratory and injunctive
relief as based on state law. However--while we agree that
appellants' complaint is hardly a model of precise pleading--
these claims appear to be founded not on local law but on the
Warsaw Convention itself; appellants allege that American's
application of the 30-Day Rule was in violation of the Conven-
tion's express lost-luggage claim notice provisions. See War-
saw Convention Art. 26(2). Furthermore, even if appellants'
claims were made under state law, the Convention preempts
only "any action for damages, however founded." Warsaw
Convention Art. 24. Accordingly, we conclude that this claim,
unlike the Cruzes' common law claims, is not preempted by
the Warsaw Convention.
* * * *
We vacate the district court's entry of judgment against
appellants in the Cruz family's original suit (No. 98-7186),
and remand for proceedings consistent with this opinion. As
our order reinstates the Cruzes' complaint to its status at the
time of the district court's grant of American's motion for
summary judgment, appellants' motion to amend their com-
plaint as a class action remains pending before the district
court.6 We also vacate the district court's dismissal of appel-
lants' class action (No. 98-7187), but note that this claim is
essentially duplicative of appellants' pending motion to
amend, and that consolidation of these two cases by the
district court would appear appropriate.
So ordered.
__________
6 The Cruzes argue that the district court's denial of their
motion to amend its complaint as a class action prejudiced unnamed
class claimants whose claims expired under the Warsaw Convention
statute of limitations during the six-month period between the filing
of the motion to amend and appellants' subsequent filing of a class
action. However, because appellants' motion to amend remains
before the court, the statute of limitations has tolled from the date
of filing with respect to the prospective class. See American Pipe
& Constr. Co. v. Utah, 414 U.S. 538, 551-52 (1974).