UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


CRUZ, MARIA

v.

V. AMER AIRLN INC


98-7186a

D.C. Cir. 1999


*	*	*


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


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 




__________

n 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




__________

n 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


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 


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,


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 




__________

n 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


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


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


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 




__________

n 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


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 




__________

n 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


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


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.




__________

n 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).