United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 25, 2006
Charles R. Fulbruge III
Clerk
No. 05-20452
EDO GEORGE MBABA; PATIENCE MBABA
Plaintiffs - Appellants,
v.
SOCIETE AIR FRANCE, doing business as Air France,
Defendant - Appellee.
Appeal from the United States District Court
for the Southern District of Texas
Before JONES, Chief Judge, and BARKSDALE and BENAVIDES, Circuit
Judges.
BENAVIDES, Circuit Judge:
This case concerns the preemptive effect of the Warsaw
Convention as amended by Montreal Protocol No. 4. The Appellant,
Edo George Mbaba, argues that his claims stemming from excess
baggage fees are not preempted because such injuries are not
contemplated by the Convention. The Appellee, Societe Air France
(“Air France”), argues that Mbaba’s claims are preempted due to the
Convention’s broad exclusivity. As explained below, the
Convention’s text and Supreme Court precedent inform our conclusion
that the claims are preempted.
I. FACTUAL AND PROCEDURAL BACKGROUND
Mbaba purchased a ticket to travel on Air France from Houston,
Texas to Lagos, Nigeria. The trip was scheduled for June 15, 2002,
and included a layover in Paris, France. Mbaba bought the ticket
from Federal Express, his employer. The parties dispute whether
Federal Express sold Mbaba a “non-revenue” (complimentary) ticket.
When Mbaba checked in for the flight in Houston, he paid a $520.00
excess baggage fee, $130.00 for each of his four extra bags. His
baggage ticket indicated that the bags were to be transported from
Houston to Lagos.
In Paris, Air France unloaded Mbaba’s baggage. Air France
says that it had to do this because Mbaba was a non-revenue
passenger. Meanwhile, Mbaba missed the scheduled flight to Lagos.
Mbaba reclaimed the baggage and spent a night in the airport
terminal waiting for the next flight. The next day, when Mbaba
checked in for the new Lagos flight, an agent said Mbaba would have
to pay $4048.66 for the extra bags. In Paris, Air France charges
excess baggage fees based upon the weight of the bags. Mbaba
alleges that the agent refused to let him send the bags back to
Houston and said that if Mbaba did not pay the charge, the bags
would be “taken out and burned.” Mbaba payed the fee with a credit
card.
Mbaba filed this suit against Air France in Texas state court,
alleging breach of contract, violation of the Texas Deceptive Trade
Practices Act, and common law fraud. Air France removed the case
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to federal court. After a period of discovery, the district court
granted summary judgment to Air France, holding that the Warsaw
Convention preempted Mbaba’s state law claims. Mbaba appealed.
II. STANDARD OF REVIEW
This Court reviews a district court’s grant of a summary
judgment de novo, applying the same standards as the district
court. Hirras v. Nat’l R.R. Passenger Corp., 95 F.3d 396, 399 (5th
Cir. 1996). The evidence should be viewed in the light most
favorable to the nonmoving party, and the record should not
indicate a genuine issue as to any material fact. Am. Home
Assurance Co. v. United Space Alliance, 378 F.3d 482, 486 (5th Cir.
2004).
III. DISCUSSION
A. The Warsaw Convention
This case presents the first opportunity for this Court to
interpret the language of the Warsaw Convention as amended by
Montreal Protocol No. 4. See Convention for the Unification of
Certain Rules Relating to International Transportation By Air, Oct.
12, 1929, 49 Stat. 3000, T.S. No. 876 (1934) (as amended by
Montreal Protocol No. 4, as reprinted in S. Rep. No. 105-20, at
21–32 (1998)) (“Warsaw Convention”). The “cardinal purpose” of the
Warsaw Convention is “to achieve uniformity of rules governing
claims arising from international air transportation.” El Al
Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 169 (1999).
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It applies to “all international transportation of persons,
baggage, or goods performed by aircraft for hire.” Warsaw
Convention, as reprinted in S. Rep. No. 105-20, at 21 (Article 1).
The language at issue is in Paragraph 1 of Article 24. It
states:
1. In the carriage of passengers and baggage, any action
for damages, however founded, can only be brought subject
to the conditions and limits set out in this Convention,
without prejudice to the question as to who are the
persons who have the right to bring suit and what are
their respective rights.
Id. at 29. The language in Paragraph 2 of Article 24 offers some
guidance in interpreting Paragraph 1. It states:
2. In the carriage of cargo, any action for damages,
however founded, whether under this Convention or in
contract or in tort or otherwise, can only be brought
subject to the conditions and limits of liability set out
in this Convention without prejudice to the question as
to who are the persons who have the right to bring suit
and what are their respective rights. Such limits of
liability constitute maximum limits and may not be
exceeded whatever the circumstances which gave rise to
the liability.
Id. at 29. This version became binding in the United States March
4, 1999, after adoption of Montreal Protocol No. 4. Tseng, 525
U.S. at 175 n.14. The previous version of Article 24 stated:
1. In the cases covered by articles 18 and 19 any
actions for damages, however founded, can only be brought
subject to the conditions and limits set out in this
Convention.
2. In the cases covered by article 17 the provisions of
the preceding paragraph shall also apply, without
prejudice to the questions as to who are the persons who
have the right to bring suit and what are their
respective rights.
4
Warsaw Convention, as reprinted in note following 49 U.S.C.
§ 40105, at 11 (2000). It is undisputed that the alleged damages
suffered by Mbaba do not fall within the language of Articles 17,
18, or 19. Article 17 describes carrier liability for death or
bodily injury. Warsaw Convention, as reprinted in S. Rep. No.
105-20, at 26. Article 18 describes carrier liability for damage
to passenger baggage. Id. Article 19 describes carrier liability
for damage caused by delay in transportation of “passengers,
baggage, or goods.” Id.
Montreal Protocol No. 4 deals primarily with rules relating to
cargo transportation. Id. at 1. For example, it reduces paperwork
that must accompany cargo and redefines cargo liability. Id. at
3–4. The protocol languished for more than twenty years in the
Senate, because Senators objected to liability limits for personal
injuries and death that would be triggered by its adoption. Id. at
2. In 1997, the Department of Transportation approved an inter-
airline agreement that waived the Convention’s limits, which led to
the Senate’s reconsideration of the protocol. Id.
B. El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng
Neither the United States Supreme Court nor the Fifth Circuit
has interpreted Article 24 of the Warsaw Convention since it was
altered by Montreal Protocol No. 4. The Supreme Court, however,
reviewed the prior version in El Al Israel Airlines, Ltd. v. Tsui
Yuan Tseng, 525 U.S. 155 (1999).
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Tseng sought damages for psychic and psychosomatic injuries
resulting from “an intrusive security search” before she boarded an
El Al Israel Airlines flight. Id. at 160. The case presented a
question of the Convention’s exclusivity, given that the Convention
did not address psychological injuries. Id. The Court found that
the Convention barred Tseng’s recovery, holding that recovery for
a personal injury “not allowed under the Convention, is not
available at all.” Id. at 161.
The Court reasoned that recourse to local law would undermine
the Convention’s purpose—uniformity of air carrier liability. Id.
at 161. It relied on language in Article 1 that made the
Convention apply to “all international transportation” and Article
24, as written before adoption of Montreal Protocol No. 4. Id. at
162. The Court found that Article 24 was part of “a compromise
between the interests of air carriers and their customers” that
restricted the claims those customers could pursue. Id. at 170–71.
It also explained that an interpretation allowing Tseng’s claims
would lead to “several anomalies,” including cases where passengers
injured physically would be subject to liability limits while
passengers merely traumatized would not. Id. at 171. Finally, the
Court concluded that other treaty signatories had interpreted the
Convention as an exclusive remedy. Id. at 176.
The Court also addressed Montreal Protocol No. 4, which at the
time of the decision had been ratified but had not taken effect.
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Id. at 174. It stated that under the amended Article 24, both
parties agreed that “[t]he treaty precludes passengers from
bringing actions under local law when they cannot establish air
carrier liability under the treaty.” Id. at 175. Indeed, Tseng
“concede[d]” that under the protocol she would have “no recourse to
an alternate remedy.” Id. at 160–61. The Court said that the
protocol “clarifies, but does not change, the Convention’s
exclusivity domain.” Id. at 161. Justice Stevens, the only
dissenting member of the Court, also assumed that the protocol
clarified the exclusivity of the Convention. Id. at 177 (Stevens,
J., dissenting) (describing his disagreement as having limited
significance because “the issue has been conclusively determined
for future cases by the recent amendment [Montreal Protocol No.4]
to the Warsaw Convention”).
C. Analysis
Mbaba argues that his claims cannot be preempted because his
injuries are not contemplated by the Convention. He focuses on the
fact that his injury is not even within the broad categories of the
Convention: personal injury, lost or damaged baggage, or delay. He
suggests that the district court’s holding in effect means that
“unless an injury is specified in the Warsaw Convention, there can
be no remedy for it.” Id. He makes this point with an analogy:
“An airline could, if it chose, even line up passengers on an
international flight and rob them at gunpoint without fear of any
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civil liability to the victims whatsoever.” Robbery is not
prohibited by the Convention.
Mbaba supports his argument with the text of Article 24,
specifically the language stating that claims “can only be brought
subject to the conditions and limits set out in this Convention.”
He also relies on a portion of Tseng relating to a hypothetical
involving an escalator. Tseng, 525 U.S. at 171–72. The
hypothetical came from Tseng’s Court of Appeals decision. The
Second Circuit reasoned that if the Convention excluded Tseng’s
claims “then a passenger injured by a malfunctioning escalator in
the airline’s terminal would have no recourse against the airline,
even if the airline recklessly disregarded its duty to keep the
escalator in proper repair.” Id. at 171. In response, the Supreme
Court stated, “[T]he Convention’s preemptive effect on local law
extends no further than the Convention’s own substantive scope. A
carrier, therefore, is indisputably subject to liability under
local law for injuries arising out of that scope: e.g., for
passenger injuries occurring before any of the operations of
embarking or disembarking.”1 Id. at 172 (internal quotation marks
1
Mbaba asks this Court to interpret “scope,” as used in Tseng,
as pertaining to the types of claims contemplated by the
Convention. Such an interpretation, however, would directly
contradict the ultimate holding in Tseng, which precluded claims
for psychological injuries because the Convention did not include
them. The Supreme Court appears to use the term “scope” to
describe the specified parameters of the Convention. Indeed,
Article 17 states that a carrier is liable for death or injuries
that take place “onboard” or while “embarking or disembarking.”
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omitted). Finally, Mbaba relies on statements made by Senator
Biden that describe Montreal Protocol No. 4. as “simplify[ing]
cargo rules” without making “controversial” changes. See 144 CONG.
REC. S11059-02 (1998).
Mbaba’s argument fails to overcome the text of the Convention
and Tseng. First, the text of Article 24 specifically preempts
claims resulting from the carriage of baggage “however founded.”2
Second, the language in Tseng surrounding the escalator
hypothetical does not overcome other passages of Tseng specifically
related to Montreal Protocol No. 4. Tseng, 525 U.S. at 175
(describing the amended Convention as “preclud[ing] passengers from
bringing actions under local law when they cannot establish air
carrier liability under the treaty”). Third, Senator Biden’s
comments are unpersuasive as they speak only to the general
characteristics of the protocol. Finally, Mbaba’s recitation of
analogies is unhelpful. Our task is to review the Convention in
relation to a tariff on the carriage of baggage. We will not
consider other scenarios.
Warsaw Convention, as reprinted in S. Rep. No. 105-20, at 26; see
also Acevedo-Reinoso v. Iberia Líneas Aéreas de España S.A., 449
F.3d 7, 14 (1st Cir. 2006) (remanding for a determination of
whether the alleged injury “occurred on board the airplane or in
the process of embarking or disembarking”).
2
The amended version of Paragraph 1 uses the more broad
language of “In the carriage of passengers and baggage” rather than
the previously used “In the cases covered by articles 18 and 19.”
Supra Part III.A.
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Our decision conforms with the view taken by the Second
Circuit in King v. American Airlines, Inc., 284 F.3d 352 (2d Cir.
2002). In King, the court held that the Warsaw Convention
preempted a discrimination claim based on an allegation that the
plaintiffs were bumped from a flight because of their race. Id. at
358. The King Court noted that the Supreme Court in Tseng “held
that the Convention’s preemptive effect on local law extends to all
causes of action . . . regardless of whether a claim actually could
be maintained under the provisions of the Convention.” Id. at 357.
For these reasons, the Warsaw Convention preempts Mbaba’s
claims. To hold otherwise would undermine the Convention’s goal of
uniformity. See Tseng, 525 U.S. at 169 (“Given the Convention’s
comprehensive scheme of liability rules and its textual emphasis on
uniformity, we would be hard put to conclude that the delegates at
Warsaw meant to subject air carriers to the distinct, nonuniform
liability rules of the individual signatory nations.”). Because we
affirm on this ground, we do not reach Air France’s alternative
arguments.
IV. CONCLUSION
Based on the text of the Warsaw Convention and the language in
Tseng, we hold that Mbaba’s claims are preempted. Accordingly, his
injuries are not actionable in the courts of the United States. We
affirm the district court’s grant of summary judgment.
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