                                                             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

                                   2
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).


                                        3
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).

                                       5
       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.


                                         6
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


                                       7
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.”

                                    8
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.

                                         9
       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.




                                        10
