                                                                     [PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                        FOR THE ELEVENTH CIRCUIT           U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                              -----------------------            MAR 12 2001
                                 No. 00-11688                 THOMAS K. KAHN
                              -----------------------              CLERK
                      D. C. Docket No. 99-2508-CV-FAM

WILLIS BLAKE,

                                            Plaintiff-Appellant,

          versus


AMERICAN AIRLINES, INCORPORATED,

                                            Defendant-Appellee,


                                ------------------------
                   Appeal from the United States District Court
                       for the Southern District of Florida
                               -------------------------
                                 (March 12, 2001)



Before WILSON, KRAVITCH and COX, Circuit Judges.

KRAVITCH, Circuit Judge:
                                            I. Issue

       This appeal presents the issue whether Jamaica is a High Contracting Party

to the Warsaw Convention.1 We address this issue to determine whether the

district court properly granted Defendant-Appellee American Airlines, Inc.’s

(“American’s”) motion for summary judgment on the ground that Plaintiff-

Appellant Willis Blake’s personal injury suit is barred by the Warsaw

Convention’s two-year limitation on actions for damages. For the reasons

discussed below, we hold that Jamaica is a High Contracting Party to the Warsaw

Convention and affirm the district court’s grant of summary judgment in favor of

American.

                                           II. Facts

       On December 27, 1995, Blake, a United States citizen and resident of

Jamaica, embarked on a round-trip American Airlines flight from Montego Bay,

Jamaica to Hartford, Connecticut. En route, in Miami, Florida, Blake changed

aircrafts and boarded American Airlines Flight 1480, scheduled to fly from Miami

to Hartford. After boarding Flight 1480 and learning that the flight would be

delayed, Blake went to the lavatory and smoked a cigarette. When Blake returned


       1
        The Warsaw Convention is the common name for the Convention for the Unification of
Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, T.S. No. 876 (Oct.
29, 1934), reprinted in note following 49 U.S.C. § 40105.

                                                2
to his seat, a flight attendant questioned him about smoking in the lavatory, and

Blake admitted doing so. The captain and the pilot then approached Blake and

asked him to deplane immediately. After Blake three times refused to leave the

aircraft, the pilot physically removed him from his seat. In the process, Blake hit

his head on the overhead storage compartment and was injured. The police were

summoned and Blake was taken to a hospital where he spent the night before

proceeding to Connecticut. One month later, on January 26, 1996, Blake returned

to Jamaica. Blake filed this lawsuit in Florida state court on August 19, 1999,

approximately three and a half years after the incident. American removed the

action to the United States District Court for the Southern District of Florida,

which granted summary judgment in favor of American because Blake filed this

suit after the expiration of the Warsaw Convention’s two-year limitation on actions

for damages.

                               III. Standard of review

      Construction of the Warsaw Convention is a question of law subject to de

novo review. Piamba Cortes v. American Airlines, Inc., 177 F.3d 1272, 1280 (11th

Cir. 1999). We also review de novo a district court’s grant of summary judgment,

applying the same standards as the district court. Harris v. H & W Contracting

Co., 102 F.3d 516, 518 (11th Cir. 1996). Summary judgment is appropriate only


                                          3
where there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

In reviewing a grant of summary judgment, we view all the evidence in the light

most favorable to the nonmoving party. Harris, 102 F.3d at 518.

                                        IV. Discussion

       The Warsaw Convention states that “[t]he right to damages shall be

extinguished if an action is not brought within 2 years, reckoned from the date of

arrival at the destination.” Warsaw Convention art. 29(1). Because Blake did not

file this suit until more than three and a half years after he arrived at his

destination,2 the suit is time-barred if the Warsaw Convention applies. The

Warsaw Convention applies to “all international transportation of persons,

baggage, or goods performed by aircraft for hire.” Warsaw Convention art. 1(1).

The Convention defines “international transportation” as

       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,


       2
        In the case of a round-trip ticket, the place of departure and the place of destination are
the same, see Campbell v. Air Jamaica, Ltd., 863 F.2d 1, 2 (2d Cir. 1988), so Blake arrived at his
“place of destination” when he returned to Jamaica on January 26, 1996.

                                                 4
      or within the territory of a single High Contracting Party, if there is an

      agreed stopping place within [another country].

Warsaw Convention art. 1(2). Because Blake’s place of departure and place

of destination were both Jamaica, his trip from Jamaica to Connecticut and

back would qualify as “international transportation”–and his lawsuit would

be time-barred by Article 29 of the Warsaw Convention–only if Jamaica is a

High Contracting Party to the Convention.

      As a colony of the United Kingdom (the “UK”), Jamaica originally

became subject to the Warsaw Convention when the UK signed the

Convention on its own behalf and on behalf of its colonies in 1934. See The

Carriage by Air (Parties to Convention) Order, 1999 (Eng.) (stating that

Jamaica became High Contracting Party to Warsaw Convention on March 3,

1935); cf. Warsaw Convention art. 40(1) (stating that any High Contracting

Party may declare that its acceptance of the Convention does not apply to

any or all of its colonies). The issue before us is whether, by gaining its

independence from the UK in 1962, Jamaica lost its status as High

Contracting Party to the Warsaw Convention. For the reasons discussed

below, we hold that it did not.




                                       5
       As a preliminary matter, we recognize that “the conduct of foreign

affairs is a political, not a judicial function,” see Sayne v. Shipley, 418 F.2d

679, 684 (5th Cir. 1969),3 such that upon considering whether Jamaica has

lost its High Contracting Party status, “governmental action in respect to [the

Warsaw Convention] must be regarded as of controlling importance.” See

Terlinden v. Ames, 184 U.S. 270, 285 (1902); see also United States ex rel.

Saroop v. Garcia, 109 F.3d 165, 171-72 (3d Cir. 1997). In Saroop, the issue

was whether the nation of Trinidad and Tobago was subject to the terms of

an extradition treaty entered into in 1931 by the United States and Great

Britain. Great Britain originally signed the treaty on its own behalf and on

behalf of its dependent territories, including Trinidad and Tobago, but

Trinidad and Tobago had not ratified the treaty formally since gaining its

independence from Great Britain in 1962. 109 F.3d at 167. The court

resolved the issue by looking to the “intent and actions” of Trinidad and

Tobago and the United States, holding that the nations’ conduct in respect to

the treaty was dispositive. See id. at 171 (citing Terlinden, 184 U.S. at 285).

The court concluded that despite the fact that Trinidad and Tobago never


       3
        Decisions by the former Fifth Circuit issued before October 1, 1981 are binding as
precedent in the Eleventh Circuit. See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207
(11th Cir. 1981).

                                           6
expressly confirmed the extradition treaty between itself and the United

States, Trinidad and Tobago was bound by the treaty because it had

indicated by its conduct a clear intent to assume the privileges and

obligations of the treaties Great Britain entered into on its behalf. Saroop at

171-72.

      Similarly, because Jamaica has not formally ratified the Warsaw

Convention, we begin our analysis by examining the conduct of the United

States and Jamaica in respect to the Convention to determine whether such

conduct evinces an intent that Jamaica be treated as a High Contracting

Party. The United States Department of State has taken no position on

whether Jamaica is a High Contracting Party to the Convention. See U.S.

Dep’t of State, Treaties in Force 342 (1999) (omitting Jamaica from list of

“States which are parties” to Warsaw Convention, and stating that “status of

certain states to which the [C]onvention was applicable prior to their

becoming independent is not determined”). Jamaica’s conduct in respect to

the Warsaw Convention, however, indicates its clear intent to adopt the

Convention’s privileges and obligations.

      First, upon gaining its independence from the UK, Jamaica agreed that

“the newly independent State would assume all Treaty obligations and rights


                                       7
relating to it entered into on its behalf prior to independence by the British

Government . . . .” Report of the Jamaica Independence Conference 12-13

(1962). By taking this position, Jamaica created a presumption that it

intended to be bound by the Warsaw Convention, which the UK entered into

on Jamaica’s behalf when it signed the Convention in 1934. See also

Saroop, 109 F.3d at 173 (“there is a presumption that when a colonized state

earns its independence from a colonial nation, prior treaties recognized by

the former colonial power will devolve to the successor in interest nation”).

Beginning with the presumption that Jamaica intended to remain a High

Contracting Party after gaining its independence from Great Britain, we next

note that Jamaica has never taken formal steps to denounce the Convention,

although the Convention provides that “[a]ny one of the High Contracting

Parties may denounce this convention by a notification addressed to the

Government of the Republic of Poland.” Warsaw Convention art. 39(1).

      Although we are aware of the negative implication created by

Jamaica’s failure to adopt the Warsaw Convention formally despite the fact

that it has taken formal steps to succeed to 23 of the 26 multilateral treaties

deposited at the United Nations which Great Britain negotiated on Jamaica’s

behalf, see Alexander v. Pan Am. World Airways, Inc., 757 F.2d 362, 364


                                        8
(D.C. Cir. 1985), we find more compelling the positive implications created

by Jamaica’s affirmative conduct in respect to the Convention. Specifically,

Jamaica has taken an active role in negotiations to amend the Warsaw

Convention, as evidenced by its participation in the Guatemala Protocol

(now known as the Montreal Protocols) to amend the Convention, and its

certification of the Guadalajara Convention, the terms of which expressly

supplement the Warsaw Convention. See Alexander at 364 (citing Jamaica

Gazette, Proclamations, Rules, Regulations 830 (1964)). Moreover, Air

Jamaica, at a time when it was wholly-owned by Jamaica, asserted the

Warsaw Convention as a defense to a lawsuit in a United States court. See

Campbell, 863 F.2d at 1. These actions are consistent with an intent to adopt

the obligations and privileges of the Convention and we hold, therefore, that

Jamaica is a High Contracting Party to the Warsaw Convention.

                               V. Conclusion

      Because Jamaica specifically has expressed an intent to remain subject

to treaties entered into on its behalf by the UK, has never taken formal steps

to denounce the Warsaw Convention, and has indicated by its conduct an

intent to adhere to the Convention, we conclude that Jamaica is a High

Contracting Party to the Warsaw Convention, such that the Convention


                                       9
governs and time-bars Blake’s lawsuit. We therefore affirm the district

court’s entry of summary judgment in favor of American.4

AFFIRMED.




       4
         A recent opinion from our circuit, Made in the USA Foundation v. United States, No.
99-13138, __ F.3d __ (11th Cir., Feb. 27, 2001), holds that the issue of “what kinds of
agreements require Senate ratification . . . presents a nonjusticiable political question.” Made in
the USA, however, is readily distinguishable from the facts and issues presented in this appeal:
it sought to determine whether a treaty was constitutional, rather than whether a given country
was a signatory to a presumptively constitutional treaty. We therefore conclude that the issue
before us – whether Jamaica is a signatory to the Warsaw Convention – is not a nonjusticiable
political question.

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