           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                           July 14, 2008

                                       No. 07-30958                   Charles R. Fulbruge III
                                                                              Clerk

MIRVAT BASSAM

                                                  Plaintiff - Appellant
v.

AMERICAN AIRLINES

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                                USDC 3:06-CV-676


Before JOLLY, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Mirvat Bassam appeals the district court’s grant of summary judgment in
favor of American Airlines, Inc. (“American”). For the following reasons, we
affirm.
                         I. FACTS AND PROCEEDINGS
       On December 8, 2005, Bassam, a citizen of Lebanon, flew from Beirut,
Lebanon to Baton Rouge, Louisiana, with stops in Paris, France and Dallas,
Texas. The initial leg of her flight from Beirut to Paris was on Middle East


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                      No. 07-30958

Airlines and her remaining flights from Paris to Dallas and from Dallas to Baton
Rouge were on American. In Beirut, Bassam checked two pieces of baggage.
When she arrived in Dallas, Bassam received her baggage before entering
through United States Customs. At that time, Bassam claims that her baggage
was in good condition and contained all of their original contents.                  After
inspection, customs officials returned her baggage, at which time Bassam
handed them over to a person in a uniform at the conveyor belt for loading
baggage. Bassam could not recall for whom this person worked. Bassam arrived
in Baton Rouge as scheduled, but one piece of her baggage did not. Bassam
immediately notified American, and an American employee at its main counter
at the airport gave her a “Property Irregularity Receipt” as well as other
documents necessary to record the loss. Bassam later submitted to American a
“Baggage and Content Description” form, and a “Property Questionnaire” form,
listing the contents of her lost baggage and claiming the value to be $5,434.00.
Nearly four months later, in April 2006, American notified Bassam that her
baggage had been found, and it delivered the baggage to the apartment complex
where she was staying in Baton Rouge. Bassam claims that when she received
her baggage, most valuable items were missing. Bassam attempted to obtain
compensation from American informally, but her efforts were unsuccessful.
       On August 3, 2006, Bassam filed suit in a Louisiana state court for lost
baggage, seeking $5,434.00 in damages. On September 12, 2006, American
removed the action to federal court based upon federal question jurisdiction,
which Bassam did not oppose. On January 11, 2007, Bassam filed an amended
complaint, in which she decreased her claim for lost baggage to $4,413.001 and
added a claim for the “embarrassment and upset of not being able to dress and
appear in public as was her prior practice” for $15,000.00.                       Bassam


       1
         Bassam reduced her claim to reflect the value of the items that were recovered when
she obtained her second piece of baggage from American.

                                             2
                                       No. 07-30958

acknowledged that the Montreal Convention governs her action and recognized
that it limits damages for lost baggage up to 1,000 Special Drawing Rights
(“SDR”).2 Bassam, however, argued that this limitation did not apply because
(1) “the loss of [her] clothing, combined with the late delivery of over two months
and the theft of most of its contents while in [American’s] possession” was prima
facie evidence of willful misconduct, and (2) she did not receive notice of the
Montreal Convention’s limitation of liability prior to her flight.
       On July 31, 2007, American filed a motion for summary judgment. In its
motion, American conceded responsibility up to the maximum amount of carrier
liability for lost baggage under the limitation of liability (1,000 SDRs),3 arguing
that the limitation applied because Bassam had not alleged sufficient facts to
demonstrate willful misconduct or show insufficient notice. American also
argued that the Montreal Convention did not permit recovery for emotional
distress damages. On September 18, 2007, the district court granted summary
judgment in favor of American, finding that the limitation applied because
Bassam had failed to set forth any competent summary judgment evidence to
show willful misconduct and that notification, even if inadequate, did not affect
carrier liability under the Montreal Convention. The district court also found
that Bassam could not recover emotional distress damages under the Montreal
Convention. As a result, on September 27, 2007, the district court entered final




       2
         The SDR is an artificial currency, the value of which is established by a “basket” of
currencies (the U.S. dollar, the Japanese yen, and the British pound). The value of a SDR in
U.S. dollars is published daily by the International Monetary Fund.
       3
        In December 2006, during the course of this litigation, American submitted an offer
of judgment pursuant to Federal Rule of Civil Procedure 68 to Bassam for the U.S. dollar
equivalent of 1,000 SDRs at that time. Bassam, however, rejected the offer.

                                              3
                                      No. 07-30958

judgment in favor of Bassam for $1,547.86 (the U.S. dollar equivalent of 1,000
SDRs on that date). Bassam appeals.4
                           II. STANDARD OF REVIEW
       We review the district court’s grant of summary judgment in favor of
American de novo. See Richardson v. Monitronics Int’l, Inc., 434 F.3d 327, 332
(5th Cir. 2005).      Summary judgment is appropriate “if the pleadings, the
discovery and disclosure materials on file, and any affidavits show that there is
no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(c). “We consider the evidence
in a light most favorable to [Bassam], the non-movant, but she must point to
evidence showing that there is a genuine fact issue for trial” in order to survive
summary judgment. Richardson, 434 F.3d at 332.
                     III. THE MONTREAL CONVENTION
       The Montreal Convention, see Convention for the Unification of Certain
Rules for International Carriage by Air, May 28, 1999, ICAO Doc. 9740,
reprinted in S. TREATY DOC. NO. 106-45, 1999 WL 33292734 (2000) [hereinafter
Montreal Convention], was entered into force on November 4, 2003.                         It
succeeded the Warsaw Convention, 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) [hereinafter Warsaw Convention], as the treaty
exclusively governing the rights and liabilities of passengers and carriers in
international air transportation. “The Montreal Convention . . . was the product
of a United Nations effort to reform the Warsaw Convention ‘so as to harmonize
the hodgepodge of supplementary amendments and intercarrier agreements of
which the Warsaw Convention system of liability consists.’” Sompo Japan Ins.,
Inc. v. Nippon Cargo Airlines Co., 522 F.3d 776, 780 (7th Cir. 2008) (quoting

       4
         Bassam does not appeal the district court’s ruling as to the notification issue, and
therefore this court does not address that issue in this opinion.

                                             4
                                   No. 07-30958

Ehrlich v. Am. Airlines, Inc., 360 F.3d 366, 371 n.4 (2d Cir. 2004)). “The
Montreal Convention is not an amendment to the Warsaw Convention[,]” it
takes “precedence over the Warsaw Convention and any of its amendments and
related instruments.” Ehrlich, 360 F.3d at 371 n.4 (internal quotations omitted).
“The new treaty unifies and replaces the system of liability that derives from the
Warsaw Convention, explicitly recognizing the importance of ensuring protection
of the interests of consumers in international carriage by air and the need for
equitable compensation based on the principle of restitution.” Sompo, 522 F.3d
at 780–81 (internal quotations omitted). Even though the Montreal Convention
is directed more at consumers, it does not alter the original goal of the Warsaw
Convention of maintaining limited and predictable damage amounts for airlines.
Id. at 781.
      The Montreal Convention “applies to all international carriage of persons,
baggage or cargo performed by aircraft for reward.” Montreal Convention,
art. 1(1). “International carriage” is defined as
      any carriage in which, according to the agreement between the
      parties, the place of departure and the place of destination, whether
      or not there be a break in the carriage . . ., are situated either within
      the territories of two States Parties, or within the territory of a
      single State Party if there is an agreed stopping place within the
      territory of another State, even if that State is not a State Party.
Id., art. 1(2).   The incident giving rise to Bassam’s claim took place on
December 8, 2005, after the Montreal Convention became effective, on an
international flight from Lebanon to Baton Rouge, via Paris and Dallas.
Therefore, American’s liability here, as recognized by both parties, is governed
by the Montreal Convention.
      Only four articles of the Montreal Convention are relevant here. Article 17
defines conditions for carrier liability for harm to passengers, including death
or bodily injury and for loss or damage to checked baggage. Article 19 similarly
defines conditions for carrier liability for damage caused by delay in the carriage

                                         5
                                     No. 07-30958

by air of passengers, baggage, or cargo. Articles 21 and 22 set forth a strict
liability regime for fault of the carrier as to these damages, but place a limitation
of liability for each type of claim. Article 22(5), however, provides a willful
misconduct exception to this limitation.
                                  IV. DISCUSSION
A. Lost Baggage Damages
      Articles 17(2), 22(2), and 22(5) of the Montreal Convention govern claims
for damages for lost baggage. Article 17(2) provides that a “carrier is liable for
damage sustained in case of destruction or loss of, or of damage to, checked
baggage” if the loss or damage occurred on board the aircraft or “during any
period within which the checked baggage was in the charge of the carrier.”
Article 22(2), however, limits that liability for damages to 1,000 SDRs per
passenger, unless the passenger has made a special declaration of interest in
delivery at the destination and has paid a supplementary sum, if required, at the
time baggage is checked. The discussion in the Letter of Submittal related to
Article 22 provides that the article “generally preserves limits on liability in
relation to delay, baggage, and cargo. These limits . . . follow precedents set by
the Warsaw Convention, as amended by The Hague Protocol and Montreal
Protocol Nos. 3 and 4.”5 1999 WL 33292734, at *8. Article 22(5) removes the
limitation of liability if “the damage resulted from an act or omission of the
carrier, its servants or agents, done with intent to cause damage or recklessly
and with knowledge that damage would probably result,” provided that “such
servant or agent was acting within the scope of its employment.”




      5
         Along with this statement in the Montreal Convention, courts have recognized that
“[a]lthough the Montreal Convention completely replaced the prior Warsaw Convention, courts
interpreting the Montreal Convention rely on cases interpreting similar provisions of the
Warsaw Convention.” Onwuteaka v. Nw. Airlines, Inc., No. H-07-0363, 2007 WL 1406419, at
*1 n.2 (S.D. Tex. May 10, 2007).

                                            6
                                      No. 07-30958

       Bassam argues that the district court erred in concluding that the
Montreal Convention limits her damages for lost baggage to the U.S. dollar
equivalent of 1,000 SDRs. She asserts that she has alleged facts sufficient to
prove willful misconduct on the part of American and that she can therefore
recover beyond that limitation.6 Specifically, in her amended complaint, Bassam
alleged that “the loss of [her] clothing, combined with the late delivery of over
two months and the theft of most of its contents while in its possession, is prima
facie evidence of actions on the part of [American’s] personnel . . . that constitute
‘reckless’ and ‘willful misconduct.’” Similarly, in her brief, she asserts, without
citation to any evidence, that
       [t]he four (4) month delay in recovery of the luggage, allowing [her]
       personal belongings to be ransacked and stolen, compounded with
       [American’s] refusal to take any meaningful steps to help [her] in an
       obvious time of need, makes [American’s] actions much more
       egregious, certainly rising to the level of what any impartial traveler
       would consider “willful misconduct” . . . .
Bassam relies on Butler v. Aeromexico, 774 F.2d 429, 432 (11th Cir. 1985), for
the proposition that willful misconduct is evaluated under an objective test.
Bassam cites only Kupferman v. Pakistan International Airlines, 108 Misc. 2d
485 (N.Y. Civ. Ct. 1981), in support of her argument on the merits, and she
characterizes the holding of that case to be that a fifteen-day delay in delivery
of a plaintiff’s baggage is sufficient to demonstrate willful misconduct under the
Warsaw Convention.
       Bassam’s willful misconduct argument, however, lacks merit for many
reasons. First, like the district court found, Bassam failed to set forth any
competent summary judgment evidence that American’s actions in losing her
baggage constituted willful misconduct.              Bassam instead rested on the


       6
         Bassam never claims that she made a special declaration of interest at the time she
checked her baggage. Thus, the only basis for her claim that she can recover above the
limitation of liability is the willful misconduct exception.

                                             7
                                   No. 07-30958

allegations in her pleadings and failed to conduct any discovery on this issue.
As she states in her amended complaint and brief, Bassam argues only that
American’s conduct constituted willful misconduct because the delivery of her
baggage was delayed for four months and valuable items were missing when she
received it. Nonetheless, without any evidence, Bassam cannot establish that
the loss of, and damage to, the items in her baggage resulted from willful
misconduct on the part of American in order to take the case outside the
Montreal Convention’s limitation of liability under Article 22(5). See Chukwuma
v. Groupe Air France, Inc., 767 F. Supp. 43, 48 (S.D.N.Y. 1991) (providing that,
under the Warsaw Convention, to presume willful misconduct “solely on the
basis of the fact that some of his luggage was lost or stolen [is] a presumption
that would severely undercut Article 22’s limitations of liability”), aff’d, 962 F.2d
2 (2d Cir. 1992).
      Second, Bassam erroneously suggests that a presumption/burden-shifting
framework applies to the evaluation of willful misconduct. Bassam suggests
that the loss of valuable contents of her baggage, combined with the four-month
delay in delivery, constitutes prima facie evidence of willful misconduct on the
part of American.      Bassam, however, fails to cite any authority for this
contention of law. To the contrary, the burden rests upon Bassam to prove the
applicable facts that support the willful misconduct exception. The Fourth
Circuit has noted that the plaintiff bears a “heavy burden of showing willful
misconduct.” Bayer Corp. v. British Airways, PLC, 210 F.3d 236, 239 (4th Cir.
2000) (internal quotations omitted). That court provided:
      The rationale for such a high threshold was explained by the
      District of Columbia Circuit—“It is not all that easy to avoid the
      Convention’s limitations by establishing willful misconduct. . . . But
      the signatories obviously thought the economics of air travel . . .
      dictated those limitations. It simply will not do for courts to chip
      away at that liability limit, out of a natural desire to remedy the
      negligence that can be all too apparent in any individual case.”

                                         8
                                   No. 07-30958

Id. (quoting Saba v. Compagnie Nationale Air France, 78 F.3d 664, 671 (D.C.
Cir. 1996)). Therefore, Bassam has the burden to establish willful misconduct,
but she failed to do so.
      Third, Bassam’s assertion that Butler requires that willful misconduct be
evaluated under an objective test is a misstatement of law. Although Bassam
relies on Butler, she fails to acknowledge that the Eleventh Circuit effectively
overruled that case in Cortes v. American Airlines, Inc., 177 F.3d 1272, 1290
(11th Cir. 1999), where it announced a subjective test. When the Eleventh
Circuit decided Butler in 1985, it considered the following language of the
Warsaw Convention that is no longer in effect: “The carrier shall not be entitled
to avail himself of the provisions of this convention which exclude or limit his
liability, if the damage is caused by his willful misconduct . . . .” 774 F.2d at 430
n.1. Under that language, the Butler court adopted the test used by the District
of Columbia Circuit in holding that willful misconduct “mean[s] ‘the intentional
performance of an act with knowledge that the . . . act will probably result in
injury or damage’ or ‘reckless disregard of the consequences’ or ‘a deliberate
purpose not to discharge some duty necessary to safety.’” Id. at 430 (quoting
Koninklijke Luchtvaart Maatschappij N.V. v. Tuller, 292 F.2d 775, 778–79 (D.C.
Cir. 1961)). The court then applied an objective test to the facts of the case in
determining that the airline’s actions constituted willful misconduct. Id. at 432.
However, since Butler, Montreal Protocol No. 4 was entered into force in the
United States on March 4, 1999, and it amended the Warsaw Convention and
replaced the term “willful misconduct” in Article 25 with the following clarifying
language: “The limits of liability specified in Article 22 shall not apply if it is
proved that the damage resulted from an act or omission of the carrier, his
servants or agents, done with intent to cause damage or recklessly and with
knowledge that damage would probably result.” See Montreal Protocol No. 4 to
Amend the Convention for the Unification of Certain Rules Relating to

                                         9
                                  No. 07-30958

International Carriage by Air, signed at Warsaw October 12, 1929, as amended
by the Protocol Done at the Hague on September 28, 1955, reprinted in S. EXEC.
R. NO. 105-120, at 29 (1998) [hereinafter Montreal Protocol No. 4]. Based upon
this amendment, the Eleventh Circuit held in Cortes in 1999, that Montreal
Protocol No. 4 replaced the “less precise articulation set forth in Butler” and
created a “subjective test” for evaluating willful misconduct.       177 F.3d at
1282–83, 1290–91. Moreover, in discussing Montreal Protocol No. 4 and the
Warsaw Convention, the Fourth Circuit has provided:
      On a mens rea spectrum from negligence to intent, article 25’s
      standard is very close to the intent end. Negligence will not suffice,
      nor even recklessness judged objectively. Rather, a plaintiff must
      show that a defendant either intended to cause the damage or acted
      recklessly with subjective knowledge that the damage would
      probably result. While an objective test asks whether an actor
      should have known of an obvious risk, the subjective test requires,
      at a minimum, a showing that the actor must have known of the
      risk.
Bayer Corp., 210 F.3d at 238–39 (internal quotations omitted). Importantly, the
Montreal Convention adopted the language of the willful misconduct exception
in Montreal Protocol No. 4, see Montreal Convention, art. 22(5), which makes
Cortes and Bayer Corp. particularly relevant. Nonetheless, in asserting her
argument under Butler, Bassam completely ignores Montreal Protocol No. 4 and
Cortes and never attempts to argue that her allegations are sufficient to satisfy
a subjective test for willful misconduct—the proper standard.
      Finally, Bassam mischaracterizes the holding of Kupferman—a 1981 state
trial court decision—the sole case upon which she relies to support her willful
misconduct argument on the merits. Bassam asserts that the court there “ruled
that the loss of luggage for the period of a fifteen (15) day vacation constituted
willful misconduct on the part of the defendant airline.” A review of this case,
however, reveals Bassam’s statement to be misleading. In Kupferman, the


                                       10
                                       No. 07-30958

plaintiffs flew to China on a group tour from June 20, 1978 to July 8, 1978, but
the airline mislaid their baggage and did not return it to them until July 5 or 6,
1978. 108 Misc. 2d at 486–87. Because of this delay, the plaintiffs filed suit
against the airline, requesting $4,066.00 in damages—the cost of the trip—for
physical discomfort and mental anguish. Id. at 486. The plaintiffs argued that
they could recover this amount under Article 19 of the Warsaw Convention
because the limitation of liability in Article 25 did not apply given that the
airline’s actions constituted willful misconduct. Id. In support, the plaintiffs
produced evidence that the airline
       (1) incorrectly ticketed plaintiffs’ luggage for Karachi instead of
       Peking, (2) despite repeated requests by plaintiffs refused to
       correctly ticket the luggage, (3) refused to verify that the luggage
       was on the plane with plaintiffs from Karachi to Peking, (4) failed
       to retrieve luggage from Karachi for 15 days, and (5) gave self-
       serving false assurances through its agents and employees that
       subject luggage would be returned the next day.
Id. at 488. Based upon this evidence, the court determined that the airline’s
conduct constituted willful misconduct, and that, under New York law, the
plaintiffs could recover beyond the limitation of liability. See id. at 489. In so
finding, however, the court did not base its ruling solely on the fifteen-day delay;
it instead considered the aforementioned evidence, which was significant. See
id. at 488.      Therefore, Bassam’s case is factually distinguishable from
Kupferman and of little, if any, use to her.
       In sum, Bassam has no factual or legal support for her willful misconduct
argument. As the district court found, the limitation of liability of the Montreal
Convention applies to Bassam, thus her recovery is limited to $1,547.86 (the U.S.
dollar equivalent of 1,000 SDRs on the date of judgment)7 under Article 22(2).



       7
         Article 23(1) states that the value of an SDR in national currency is to be determined
“at the date of the judgment.”

                                              11
                                        No. 07-30958

B. Emotional Distress Damages
       Although Bassam sought emotional distress damages in her amended
complaint and the district court separately discussed and ruled on this claim in
its summary judgment order, she does not specifically discuss this issue in her
brief and confines her argument to the lost baggage claim. Therefore, we hold
that Bassam has waived this argument for failure to brief in violation of Federal
Rule of Appellate Procedure 28. See United States v. Jimenez, 509 F.3d 682, 693
n.10 (5th Cir. 2007) (holding that an issue not raised in appellant’s brief as
required by Rule 28 is deemed waived).
       Nevertheless, even if we consider her claim for emotional distress
damages, we hold that Bassam cannot recover under the Montreal Convention.
Bassam alleged that she suffered emotional distress as a result of the delay in
receiving her baggage and the discovery of the loss of valuable contents of her
baggage. Her claim for $15,000.00 in emotional distress damages is based solely
on the “embarrassment and upset of [her] not being able to dress and appear in
public as was her prior practice.” As the district court noted, however, Bassam
has failed to provide any legal support for her contention that she can recover
such damages.8
       Because the Montreal Convention does not expressly provide for emotional
distress damages and Bassam did not designate any specific provision for such
recovery, she presumably attempts to recover them under Article 17 or 19.
Article 17(1) provides that carriers are liable for damage sustained in case of


       8
          Bassam’s reference to Kupferman only related to the willful misconduct exception to
the limitation of liability. However, even if she would have cited that case in support of her
claim for emotional distress damages, as it allowed for such recovery, see Kupferman, 108 Misc.
2d at 489, it would not have supported her argument, given the Supreme Court’s decision in
Eastern Airlines, Inc. v. Floyd, 499 U.S. 530 (1991), which effectively overruled that case on
that point. In Eastern Airlines, the Court held that Article 17 of the Warsaw Convention did
“not allow recovery for purely mental injuries.” Id. at 534. By extension, this court has applied
the holding of Eastern Airlines to Article 19 of the Warsaw Convention. See Lee v. Am.
Airlines, Inc., 355 F.3d 386, 387 (5th Cir. 2004).

                                              12
                                  No. 07-30958

death or bodily injury of a passenger caused by an accident either “on board the
aircraft or in the course of any of the operations of embarking or disembarking.”
The Explanatory Note related to this article states:
      Following extensive debate, the Conference decided not to include
      an express reference to recovery for mental injury, with the
      intention that the definition of “bodily injury” would continue to
      evolve from judicial precedent developed under Article 17 of the
      Warsaw Convention, which uses that term. The Conference adopted
      the following Statement, recorded in the Minutes of the Proceedings:
            With reference to Article 16 [sic], paragraph 1 of the
            Convention, the expression “bodily injury” is included
            on the basis of the fact that in some States damages for
            mental injuries are recoverable under certain
            circumstances, that jurisprudence in this area is
            developing and that it is not intended to interfere with
            this development, having regard to jurisprudence in
            areas other than international carriage by air . . . .
1999 WL 33292734, at *16 (citation omitted). As directed by the Montreal
Convention, in looking to existing judicial precedent, courts have held that
emotional injuries are not recoverable under Article 17 of the Montreal
Convention or Warsaw Convention unless they were caused by physical injuries.
See Ehrlich, 360 F.3d at 369–400; Booker v. BWIA West Indies Airways Ltd., No.
06-CV-2146, 2007 WL 1351927, at *4 (E.D.N.Y. May 8, 2007); see also E.
Airlines, Inc. v. Floyd, 499 U.S. 530, 552–53 (1991) (holding that a carrier could
not be held liable under Article 17 of the Warsaw Convention for mental injuries
that did not accompany bodily injuries); Carey v. United Airlines, 255 F.3d 1044,
1051 (9th Cir. 2001) (holding that emotional and mental distress, even when
accompanied by physical manifestations, are not recoverable under Article 17 of
the Warsaw Convention).       Bassam has not alleged any physical injury.
Moreover, even if her claim of “embarrassment and upset” could be construed as
such, that injury was not caused by an accident on board the aircraft or in the

                                       13
                                  No. 07-30958

course of embarking or disembarking. Therefore, Bassam has failed to establish
carrier liability for emotional distress damages under Article 17(1).
      Similarly, Articles 17(2) and 19 provide that a carrier is liable for damages
caused by the loss of baggage and delay in the carriage of passengers and
baggage. As American acknowledges, Bassam’s emotional distress claim is with
regard to the delay in providing her baggage and the loss of some of its contents.
However, neither article nor any provision in the Explanatory Note related to
these articles reference emotional distress damages for lost or delayed baggage.
In considering these claims, courts have held that damages for purely emotional
injuries are not available under the Montreal Convention. See Onwuteaka v.
Nw. Airlines, Inc., No. H-07-0363, 2007 WL 1406419, at *1 (S.D. Tex. May 10,
2007); Booker, 2007 WL 1351927, at *4 n.6. Moreover, in evaluating a claim for
emotional distress damages under Article 19 of the Warsaw Convention based
upon the delay and cancellation of a flight, this court has held that “[m]ental
injury damages are not recoverable under the Warsaw Convention.” Lee v. Am.
Airlines, Inc., 355 F.3d 386, 387 (5th Cir. 2004); see also Daniel v. Virgin Atl.
Airways Ltd., 59 F. Supp. 2d 986, 992–94 (N.D. Cal. 1998) (holding that only
economic loss or physical injury—not emotional distress—are damages
recoverable under Article 19 of the Warsaw Convention). The Court of Appeals
of Kentucky also rejected a claim for mental anguish damages related to lost
baggage under the Warsaw Convention. See Trans World Airlines, Inc. v.
Christophel, 500 S.W.2d 409, 411 (Ky. Ct. App. 1973). Therefore, Bassam cannot
recover emotional distress damages under Articles 17(2) or 19. Accordingly, the
district court did not err in finding that the Montreal Convention does not
permit Bassam to recover emotional distress damages.
                              V. CONCLUSION


                                        14
                           No. 07-30958

    For the foregoing reasons, the judgment of the district court is
AFFIRMED.




                                15
