Dazo v. Globe Airport Security Services

O’SCANNLAIN, Circuit Judge,

concurring in part and dissenting in part.

I concur in the court’s affirmance of Dazo’s wilful misconduct claim, but I must respectfully dissent from its holding that Globe, as agent of TWA, is not entitled to the protection of the Warsaw Convention.

At the time of Dazo’s flight, airlines were charged by federal statute with the responsibility to screen all passengers and property. See 49 U.S.C. § 44901 (2000).1 *942TWA, which provided Dazo carriage to Toronto, delegated its screening responsibility to Globe.2 Thus, Dazo concedes, as she must, that Globe acted as TWA’s agent when she passed through the security checkpoint. The Warsaw Convention extends to an airline’s agents and employees, a premise not challenged by the majority. See, e.g., Reed v. Wiser, 555 F.2d 1079, 1089-92 (2d Cir.1977); Kabbani v. Int’l Total Servs., 805 F.Supp. 1033, 1039-40 (D.D.C.1992); In re Air Disaster at Lockerbie, Scotland on Dec. 21, 1988, 776 F.Supp. 710, 712-14 (E.D.N.Y.1991); Baker v. Lansdell Protective Agency, Inc., 590 F.Supp. 165, 170-71 (S.D.N.Y.1984). Hence, to the extent that Globe acts as agent of TWA, it must be afforded the protection of the Warsaw Convention. See, e.g., In re Air Disaster, 776 F.Supp. at 714 (holding airport security company protected by the Convention).

The majority implies that if Globe provided screening only for TWA, Globe would indeed fall within the Convention. Supra at 939.3 Nevertheless, it claims the fact that Globe also provides screening for two other airlines at the checkpoint somehow destroys its Convention status. According to the majority, an agent of multiple airlines can never fall within the Convention because the agent performs services for airlines other than the one that provided international carriage.

The majority’s approach suffers from a fundamental misunderstanding of agency principles. An agent may serve two masters at once, as long as service to one does not involve abandonment of service to the other. See Restatement (Second) of Agency § 226 (1958); see also Ward v. Gordon, 999 F.2d 1399, 1404 (9th Cir.1993). Globe served multiple masters; TWA, America West Airlines, and Continental Airlines each arranged for Globe to provide screening at Terminal C of the airport. However, Globe’s service to one airline in no way involved an abandonment to the others. Globe was fulfilling its duty to TWA when Dazo passed through security. In short, Globe’s association with America West and Continental does not destroy its agency relationship with TWA.

Apart from proper application of agency principles, common sense dictates that the majority’s approach is misguided. Under that approach, a security company serving one airline is entitled to the protection of the Convention, but a security company serving multiple airlines is not. Why should the arbitrary happenstance of whether a security service contracts with multiple partners determine whether a person’s claims are preempted by the Warsaw Convention?4

*943Of course, the majority is correct in saying that the protections of the Warsaw Convention do not extend to America West and Continental. The Warsaw Convention is limited to airlines and its agents that actually provide international carriage, and neither America West nor Continental provided any carriage to Dazo whatsoever. Accordingly, while TWA and Globe are entitled to Warsaw Convention status, America West and Continental are not.

Nonetheless, I disagree with the majority’s decision to reinstate Dazo’s claims against America West and Continental. Dazo has made no attempt to distinguish among the three airlines she has sued. Indeed, she waited until her petitions for rehearing to even identify which airline provided her carriage to Toronto. In these circumstances, Dazo has waived any claim against America West and Continental. See, e.g., Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir.1994) (“We review only issues which are argued specifically and distinctly in a party’s opening brief.”).

I appreciate the fact that the tragic events of September 11, 2001 have cast this case in a different light from when it was first taken under submission. To some, the experience of September 11 undoubtedly makes it far less palatable to shroud airport security companies within the liability caps of the Warsaw Convention. Globe’s parent, after all, screened passengers for American Airlines Flight 11, which was used to destroy the north tower of the World Trade Center. See, e.g., Milo Geyelin, Judge Wants Victims of Sept. 11 Who Sue to Know Risks of Action, Wall St. J., Apr. 12, 2002, at B2; Patricia Hurtado, Victim’s Kin Sues Airline, Netosday (New York), Apr. 9, 2002, at A3. But this nation’s recent tragedy simply does not bear on the legal question presented in this case, and does not justify a panel majority reversing course. Our judicial charge is to stand above the inflamed passions of the public, however much we may share them; we must apply the law faithfully and evenhandedly. See LaVine v. Blaine Sch. Dist., 279 F.3d 719, 728 (9th Cir.2002) (Kleinfeld, J., dissenting from denial of rehearing en banc) (“[The] ... law ought to be based on neutral principles, and should not easily sway in the winds of popular concerns, for that would make our liberty a weak reed that swayed in the winds.”).

I respectfully dissent.

Opinion by Judge TASHIMA; Partial Concurrence and Partial Dissent by Judge O’SCANNLAIN.

. In the wake of September 11, 2001, Congress enacted the Aviation and Transportation Security Act, Pub.L. No. 107-71, 115 Stat. 597 (2001) (codified in scattered sections of 49 U.S.C.). The Act shifts the responsibility *942for screening from the airlines to the federal government effective November 19, 2001.

. While the record does not reveal which airline provided international carriage, Dazo identified TWA as the airline in her petitions for rehearing. Thus, for ease of discussion, I refer to TWA as the airline that provided carriage to Toronto. Of course, Globe's Convention status is not affected by the absence of the airline’s identity in the record. It is undisputed that Globe acted as the agent for the airline (whichever one it was) that provided international carriage.

. I recognize that the majority does not explicitly concede this point. However, the majority distinguishes several cases extending Convention status to an airline’s agent solely on the ground that in those cases the agent served one airline exclusively. Supra at 939. Thus, the majority implicitly concedes that the result in this case would be different if Globe served only TWA.

.Apparently, even Dazo appreciates the deficiency of the majority’s approach. Judge Ta-shima articulated this approach in his dissent to the original panel decision. In her twelve page petition for rehearing, Dazo afforded merely a single sentence in support, under the heading "Miscellaneous.”