Block v. Compagnie Nationale Air France

• Decision Date: 08 November 1967
• Docket Number: No. 21609.,21609.
• Citation: 386 F.2d 323
• Parties: Bates BLOCK et al., Appellants, v. COMPAGNIE NATIONALE AIR FRANCE, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

386 F.2d 323 (1967)

Bates BLOCK et al., Appellants, v. COMPAGNIE NATIONALE AIR FRANCE, Appellee.

No. 21609.

United States Court of Appeals Fifth Circuit.

November 8, 1967.

William H. Schroder, Atlanta, Ga., Lee S. Kreindler, New York City, for appellants.

E. Smythe Gambrell, Harold N. Hill, Jr., Atlanta, Ga., for appellee.

Before JONES and WISDOM, Circuit Judges, and BREWSTER, District Judge.

WISDOM, Circuit Judge:

June 3, 1962, an Air France Boeing 707 jet liner beginning the final leg of an Atlanta-Paris-Atlanta "Jet Trip to the Louvre" crashed at Orly Field, Paris, France. Everyone aboard was killed. The 122 passengers were all members of the Atlanta Art Association. February 2, 1962, the association had entered into an "International Charter Flight Agreement" with Air France for the airline to furnish the plane for the flight at the cost of $36,000.

The plaintiffs instituted forty-five actions against Air France for the deaths of sixty-two of the passengers. These actions were consolidated under Fed.R. Civ.P. 42(a) for a determination of liability, separate trials to be held on the issue of damages.

Air France asserts three defenses: (1) that the flight was governed by the Warsaw Convention, ratified and adhered to by the United States, limiting recovery to a maximum of $8291.87 for each person killed;¹ (2) that the contract of carriage (as set forth in the Charter Flight Agreement or in the ticket or in both) explicitly incorporates by reference the Warsaw limitation; (3) that the law of France, where the accident occurred, governs the case, and under French law the Warsaw limitation is applicable.

The plaintiffs contend that the Warsaw Convention does not apply to charter flights.² Accordingly, they filed a motion for a partial summary judgment under Fed.R.Civ.P. 56 seeking a judgment dismissing and striking each part of the defenses that asserts the applicability of the Convention. The district court denied the motion. Block v. Compagnie Nationale Air France, N.D.Ga. 1964, 229 F.Supp. 801. The court found:

"Under the terms of the Charter Flight Agreement Air France furnished all the crews, fuel, etc.; and no passenger was to be carried unless such passenger had been issued a ticket by Air France. The International Charter Agreement was made subject to the approval of the Civil Aeronautics Board. * * * From the evidence now presented, it appears that there are no substantial differences as to the facts surrounding the arrangements of the `Jet Trip to the Louvre\'."

The court correctly limited the issue:

"This Court heretofore, in various hearings, has noted that there are various possible arrangements by which a charter flight might be made and the question therefore is not `Does the Warsaw Convention apply generally to charter flights\', but the question is `Does the Warsaw Convention apply to this particular charter flight?\'"

The court held:

"Under the factual situation in the cases at hand * * * where Air France, the air carrier, owns, operates, and controls the aircraft and, prior to departure, delivers proper tickets to the passengers for their passage, the Warsaw Convention would be applicable, and the passenger or passengers would be entitled to the presumption of liability contained in the Warsaw Convention as against Air France, and Air France, the air carrier, would be entitled to the limitation of liability also contained in the Convention as against the passengers."

We affirm. The Warsaw Convention applies to the international transportation of passengers under a contract of carriage on a "voyage" charter flight. The plaintiffs' recovery of damages in the instant cases therefore is limited to the amount allowed by that treaty. We find it unnecessary to pass upon Air France's other defenses.

I.

At the time the Warsaw Conference was held, October 1929, civil aviation was in its infancy.³ Lindberg had flown the Atlantic only two years before. The sole international air carrier in the United States operated flights between Havana and Key West.⁴ The United States declined an invitation to attend the Conference, although it sent two observers, John Ide and McCeney Werlich.

The Warsaw Convention was the result of extensive preparatory work, commencing with the first Conférence Internationale de Droit Privé Aérien, held in Paris in 1925. The Paris Conference appointed a committee of experts in international air law, the Comité Internationale Technique d'Experts Juridique Aériens (Citeja), officially translated in United States documents as "International Technical Committee of Aerial Legal Experts". Citeja has had primary responsibility for preparing draft conventions submitted to various conferences on international air transportation.⁵ American observers were present at the Paris Conference and at meetings of Citeja during the years 1927 through 1930. From 1931 on, the United States appointed official representatives to Citeja. The Paris Conference prepared a preliminary draft convention on the liability of air carriers and assigned certain topics for further study to Citeja. One of these topics was "location des aéronefs", a generic term meaning the hiring and renting and, sometimes, chartering of airplanes.⁶

The Conference achieved its two primary objectives: (1) uniform rules relating to air transportation documents (passenger ticket, baggage check, and air waybill); (2) limitation of the carrier's liability for an airplane accident. In accomplishing the second objective, the Conference recognized the need for a quid pro quo by establishing a presumption of the carrier's liability, thereby shifting the burden of proof from the passenger to the carrier. (Article 20.⁷) Secretary of State Cordell Hull, in transmitting the Warsaw Convention to the United States Senate in 1934, explained:

"It is believed that the principle of limitation of liability will not only be beneficial to passengers and shippers as affording a more definite basis of recovery and as tending to lessen litigation, but that it will prove to be an aid in the development of international air transportation, as such limitation will afford the carrier a more definite and equitable basis on which to obtain insurance rates, with the probable result that there would eventually be a reduction of operating expenses for the carrier and advantages to travelers and shippers in the way of reduced transportation charges. * * * The principle of placing the burden on the carrier to show lack of negligence in international air transportation in order to escape liability, seems to be reasonable in view of the difficulty which a passenger has in establishing the cause of an accident in air transportation."⁸

II.

On its face, the Warsaw Convention seems to cover all international carriage by air, without any limitation whatever.

A. Article 1(1) states the scope of the treaty:

"This convention shall apply to all international transportation of persons, baggage, or goods performed by aircraft for hire. It shall apply equally to gratuitous transportation by aircraft performed by an air transportation enterprise." (Emphasis added.)

Article 1(2) defines "international transportation":

"For the purposes of this convention, the expression `international transportation\' shall mean 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 or a transshipment, are situated either within the territories of two High Contracting Parties, or within the territory of a single High Contracting Party, if there is an agreed stopping place within a territory subject to the sovereignty, suzerainty, mandate or authority of another power, even though that power is not a party to this convention."

The district judge found Article 1 so clear that he concluded, "The language contained in the Warsaw Convention is not ambiguous, and the court deems it unnecessary to resort to a discussion of the legislative history of the Treaty."

B. The Convention makes only three exceptions to the wide sweep of Article 1. None covers this Air France charter flight. First, Article 2(2) excludes "transportation performed under the terms of any international postal convention". Second, Article 34 excludes "international transportation by air performed by way of experimental trial by air navigation enterprises with the view to the establishment of regular lines of air navigation". Third, Article 34 also excludes "transportation performed in extraordinary circumstances outside the normal scope of an air carrier's business."⁹

The third exception is the only one that, arguably, might encompass the Air France flight. This provision, however, was intended from the start to have a very narrow application. In placing the draft convention before the conference, Henri De Vos of Belgium, Rapporteur of the Conference, gave as an example of an "extraordinary" situation a rescue mission sent to pick up passengers and baggage from an earlier flight that had been forced down. He described such a rescue flight as one that "could not be made under normal conditions."¹⁰ Professor Georges Ripert, delegate from France, author of Article 34, explained that in such exceptional circumstances certain requirements established by the Convention, such as the delivery of a passenger ticket and baggage check, could not be observed.¹¹ Several delegates complained that this provision would open a dangerous loophole in the Convention.¹² To allay their fears, Professor Ripert stressed that this exception was not a broad loophole.¹³ Just before the conference was to take a final vote on Article 34 Amedee Giannini, head of the Italian delegation, who had cautioned Ripert earlier about the dangers inherent in the provision,¹⁴ emphasized the narrowness of the provision.¹⁵

The parties to the treaty and their delegates to the Conference were well aware that the Convention was to...