United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 16, 2004 Decided March 18, 2005
No. 03-7129
KATHLEEN ROBERTSON,
APPELLANT
v.
AMERICAN AIRLINES, INC.,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 01cv02426)
Lisa A. Fishberg argued the cause for appellant. On the
briefs was Barry Coburn.
Ronald G. DeWald argued the cause and filed the brief for
appellee.
Before: GINSBURG, Chief Judge, and GARLAND and
ROBERTS, Circuit Judges.
Opinion for the court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Kathleen Robertson sued
American Airlines for damages resulting from burns she
2
sustained on a flight from Denver to Chicago. If that flight
qualifies as “international transportation” within the meaning of
the Warsaw Convention, Robertson’s suit is barred by the
Convention’s statute of limitations. The district court concluded
that the flight -- which was one leg of a trip that began in
London and ended in Washington the same day -- did so qualify.
We affirm.
I
In 1998, appellant Robertson was a “war games” strategist
living in the Washington, D.C. area. On August 7, 1998, she
had a travel agent, Nancy Thompson of Gateway Travel, book
her a round-trip flight between Denver and London on British
Airways (BA), departing on September 2 and returning on
September 8. Three days later, on August 10, Thompson also
booked Robertson on a round-trip flight between Washington,
D.C. and Denver, via Chicago, on American Airlines (AA).
That flight was to depart on August 29 and to return on
September 8. Thus, as initially scheduled, Robertson was to
leave Washington on August 29; to stay in Denver for several
days before continuing to London on September 2; and to depart
London for home on September 8, with a three-hour layover in
Denver. On August 24, Robertson used Gateway Travel to book
an alternative route home: a one-way ticket on AA from
London to Washington, via New York, departing and arriving on
September 10.
As scheduled, Robertson flew from Washington to Denver
on August 29. She remained for a few days in Denver, where
she conducted a war games exercise with the city’s mayor, and
then flew from Denver to London on September 2. That day,
Robertson had her initially scheduled return flights -- London-
Denver on BA, and Denver-Chicago-Washington on AA --
changed from September 8 to September 10, the same date for
3
which she held the alternative ticket from London to
Washington on AA. Thus, Robertson had two available
itineraries for her return home on September 10. First, she could
take an 8:00 a.m. AA flight from London, connect in New York,
and arrive in Washington at 2:10 p.m. Second, she could take
a 10:20 a.m. BA flight from London, arrive in Denver at 1:20
p.m., switch to a 4:32 p.m. AA flight from Denver, connect in
Chicago, and arrive in Washington at 11:19 p.m.
Robertson chose the latter -- and later -- alternative and
departed from London on the morning of September 10 aboard
the BA flight to Denver. After a three-hour layover in Denver,
she boarded the AA flight to Washington by way of Chicago.
En route, she asked a flight attendant to cool a “gel pack” she
was using to treat a sore back. According to Robertson’s
complaint, the attendant returned with an air-sickness bag
containing the gel pack and dry (rather than ordinary) ice. When
Robertson put the bag on her back, she suffered third-degree
burns.
Just short of three years later, on September 7, 2001,
Robertson sued American Airlines in the Superior Court of the
District of Columbia. American removed the action to the
United States District Court for the District of Columbia. On
January 15, 2003, American filed a motion for summary
judgment, contending that the action was governed by the
Warsaw Convention1 because the claim arose out of
international transportation, and that the Convention’s two-year
statute of limitations, see Art. 29(1), 49 Stat. 3021, barred
Robertson’s claim. Robertson argued that the Convention did
not apply, and that the action was instead governed by the
1
Convention for the Unification of Certain Rules Relating to
International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S.
No. 876 (1934), reprinted in 49 U.S.C. § 40105 note.
4
District of Columbia’s three-year statute of limitations, D.C.
Code § 12-301. The district court agreed with American and
granted its motion for summary judgment. Robertson v.
American Airlines, Inc., 277 F. Supp. 2d 91, 100 (D.D.C. 2003).
II
We review the district court’s grant of summary judgment
de novo. Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir.
2003). Under Federal Rule of Civil Procedure 56(c), summary
judgment should be awarded only if “there is no genuine issue
as to any material fact and . . . the moving party is entitled to a
judgment as a matter of law.” See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986). We conclude that the district
court’s grant of summary judgment to American Airlines was
correct.
The Warsaw Convention governs air carrier liability for
claims arising out of “international transportation” of persons
and property by air. Art. 1(1), 49 Stat. 3014; see El Al Israel
Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 160 (1999). As
we have noted before, the Convention’s provisions sometimes
advantage plaintiffs and sometimes defendants, depending upon
the circumstances. Haldimann v. Delta Airlines, Inc., 168 F.3d
1324, 1326 (D.C. Cir. 1999). In this case, the parties agree that
if the flight on which Robertson was injured qualifies as
international transportation, the Convention applies and its two-
year statute of limitations bars her recovery. Appellant’s Br. at
10; Appellee’s Br. at 4.
Article 1(2) of the Convention defines “international
transportation” as “any transportation in which, according to the
contract made by the parties, the place of departure and the place
of destination, whether or not there be a break in the
transportation . . . , are situated . . . within the territories of two
5
High Contracting Parties.” 49 Stat. 3014. Article 1(3) further
provides that:
Transportation to be performed by several successive
air carriers shall be deemed, for the purposes of this
convention, to be one undivided transportation, if it has
been regarded by the parties as a single operation,
whether it has been agreed upon under the form of a
single contract or of a series of contracts, and it shall
not lose its international character merely because one
contract or a series of contracts is to be performed
entirely within a territory subject to the sovereignty . .
. of the same High Contracting Party.
Id. at 3015. Thus, the Convention contemplates that an entirely
domestic leg of an international itinerary will be covered by the
Convention as part of “one undivided [international]
transportation” -- even if it is performed by a “successive”
carrier and even if the various legs are agreed upon under “a
series of contracts” -- as long as it has been “regarded by the
parties” as part of “a single operation.”
But how do we decide how a particular trip was “regarded
by the parties”? In Haldimann, we noted that, although the
Convention’s language “suggests that we must look to the
intention of the parties,” it “would seem rather difficult to do so,
for they -- especially the traveler -- are unlikely ever to have
remotely considered the question whether the transportation was
‘a single operation,’ or ever to have pondered what that phrase
might mean.” 168 F.3d at 1325. We further noted that, “in the
rare case where there has been evidence of the traveler’s
subjective intent, and it contradicted the court’s inference from
specific documentary indicia, courts have held that the indicia
trump subjective evidence.” Id. Relying upon the available
objective indicia in that case, we held that a Delta Airlines flight
6
from Pensacola, Florida to Gainesville, Florida was part of a
single operation when it was one leg of the following itinerary:
from Geneva, Switzerland to Washington, D.C., on Swissair;
from Washington to Pensacola to Gainesville and back to
Washington, on Delta; and from Washington back to Geneva, on
Swissair. Other circuits have similarly eschewed subjective in
favor of objective evidence of intent in making this kind of
determination. See Coyle v. P.T. Garuda Indon., 363 F.3d 979,
987 (9th Cir. 2004); Petrire v. Spantax, S.A., 756 F.2d 263, 266
(2d Cir. 1985). We -- like the district court -- follow that course
here.
We begin by asking whether Robertson regarded her
London-Denver travel and her Denver-Chicago-Washington
travel as a single operation. There can be no genuine dispute
over this question. First, on the morning of September 10, 1998,
Robertson held alternative itineraries for her flight from London:
one on AA through New York to Washington, and a later flight
on BA connecting to AA in Denver and on to Washington via
Chicago. This indicates that both the intermediate stops and the
choice of carriers were incidental to her plan to fly from London
to Washington that day.
Second, and in our view dispositive, Robertson scheduled
her BA-AA connection in Denver so that her flight to Chicago
(and on to Washington) would depart within about three hours
of her arrival from London. It is unlikely that a layover of that
length would even have given her time to leave the airport, and
the record confirms that Robertson had no purpose for being in
Denver on that day other than to make the plane connection.
See In re Air Crash Disaster of Aviateca Flight 901, 29 F. Supp.
2d 1333, 1342 (S.D. Fla. 1997) (“Common sense dictates that
when a traveler plans such a short layover between the parts of
a journey, the traveler regards the layover as merely an
intermediate stopping place and not his or her destination.”).
7
Accordingly, there can be no genuine dispute that Robertson
regarded the Denver-Chicago trip as part of a unified journey
from London to Washington.
Robertson points to a number of circumstances that she
maintains are inconsistent with the conclusion that she regarded
her travel as a single operation. She notes, for example, that on
the outbound trip she stayed in Denver for four days, where she
engaged in work that was different from the business she had in
London. But the argument that these facts are inconsistent with
her regarding the journey as a single operation is foreclosed by
Haldimann, in which we found a single operation
notwithstanding multiple-day stay-overs -- with different
purposes -- between several legs of the plaintiffs’ itinerary. See
168 F.3d at 1324, 1326; see also Art. 1(2), 49 Stat. 3014
(providing that transportation may constitute “‘international
transportation’ . . . whether or not there be a break in the
transportation”). In any event, this argument would not affect
the conclusion that Robertson regarded the London-Denver-
Washington return trip, which involved only a three-hour
layover, as a single operation.
Robertson also points out that she purchased the two round-
trip tickets (Denver-London-Denver and Washington-Denver-
Washington) on two different airlines, that the tickets were
issued in separate booklets, that she purchased them on different
days, and that she received them in separate mailings. But the
fact that the tickets were purchased on two different airlines is
what frames the question, not what decides it: the point of
Article 1(3) is that “[t]ransportation to be performed by several
successive air carriers shall be deemed . . . to be one undivided
transportation” if regarded by the parties as a single operation.
49 Stat. 3015 (emphasis added). Nor, as we held in Haldimann,
does the fact that the tickets were issued in separate booklets
“militat[e] even in the slightest against finding a ‘single
8
operation,’” since “Article 1(3) views transportation as
‘undivided . . . whether it has been agreed upon under the form
of a single contract or of a series of contracts.’” 168 F.3d at
1326 (quoting Art. 1(3), 49 Stat. 3015). For the same reason, we
regard as insignificant the fact that three days separated one
purchase from the other (along with its corollary that the tickets
were sent in separate mailings). Indeed, while the initial
purchases were made three days apart, they plainly were
coordinated to link the two round trips together; and when the
return trip was changed to September 10, the London-Denver
and the Denver-Washington legs were changed simultaneously.
The remaining question is how American Airlines regarded
Robertson’s travel. There is no doubt that if American knew the
objective facts of Robertson’s itinerary as set forth above, the
airline -- like Robertson -- would have regarded the Denver-
Chicago-Washington flight as part of a single operation with the
London-Denver flight. But did American know? American did
have a record of a London-New York-Washington ticket for
Robertson dated September 10. However, because the AA ticket
she ultimately used was only for Denver-Chicago-Washington,
it is not clear that the airline would have known she was
traveling internationally that day. Noting that other district
“courts have held that a travel agent’s knowledge of a plaintiff’s
travel intentions is imputed to the carrier,” the district court
resolved the issue by applying the same rule. Robertson, 277 F.
Supp. 2d at 99. Because Robertson’s appellate briefs do not
dispute it, we apply the imputation rule as well.2
2
Robertson did dispute the rule during questioning at oral
argument, but oral argument is too late to raise an objection for
appellate consideration. See, e.g., Ark Las Vegas Rest. Corp. v. NLRB,
334 F.3d 99, 108 n.4 (D.C. Cir. 2003); C.J. Krehbiel Co. v. NLRB, 844
F.2d 880, 883 n.1 (D.C. Cir. 1988).
9
Robertson concedes that a travel agency, Gateway Travel,
made the reservations for all of the BA and AA flights up to and
including those on September 8 (as well as for the London-New
York-Washington AA flight scheduled for September 10).
Appellant’s Br. at 3. Although Robertson does not concede that
she also used Gateway to change the September 8 tickets to
September 10, she does not dispute that Gateway knew of the
change, Oral Arg. Tape at 14:45-18:15, and does not assert that
she or anyone other than Gateway made the change -- a fact that
presumably would be within her personal knowledge.3
Moreover, both BA’s and AA’s internal Passenger Name
Records (PNRs) for Robertson’s September 10 flights contain
references to “Gateway Travel Nancy.” J.A. 326, 328.
Accordingly, because the only evidence in the record confirms
that American (through Gateway) knew of the London-Denver
leg of Robertson’s trip, we concur in the district court’s
conclusion that there is no genuine dispute that the airline “was
aware of [her] international flight plans.” Robertson, 277 F.
Supp. 2d at 99.4
3
Although Robertson submitted an affidavit from Helen
Klohmann, an owner of Gateway, the Klohmann affidavit does not
state whether Gateway made the change. Instead, Klohmann (who did
not personally handle Robertson’s bookings) declares that “Gateway
Travel’s understanding was that” Robertson’s Washington-Denver-
Washington and Denver-London-Denver “itineraries were separate
and distinct.” Pl.’s Opp’n to Mot. for Summ. J., Ex. 1. The district
court properly regarded the affidavit as irrelevant because the Warsaw
Convention inquiry “focuses on objective rather than subjective
evidence, and particularly [not on] subjective evidence from a party
who was not directly involved in the booking transaction.” Robertson,
277 F. Supp. 2d at 99 n.13.
4
The district court’s opinion contains a footnote stating that “[t]he
record does not indicate whether [Robertson] used a travel agent” to
change the flights to September 10, see 277 F. Supp. 2d at 94 n.4, a
10
III
We conclude that there is no genuine dispute that the flight
on which Robertson sustained her burns qualifies as
international transportation within the meaning of the Warsaw
Convention. The Convention’s two-year statute of limitations
therefore applies, barring her claim. Accordingly, the judgment
of the district court granting summary judgment in favor of
American is
Affirmed.
statement seemingly inconsistent with its conclusion quoted above.
Whatever the court intended by the footnote, we are satisfied to the
contrary for the reasons stated above.