ITS cannot be considered an agent of Air France capable of invoking the Convention's protection.
Plaintiff's arguments are unconvincing. Nothing in the Convention indicates that carriers may escape either the treaty's liability obligations or its limitations simply by contracting out their liability. Nor may the agents they hire waive the Convention's provisions. The very language and purpose of the treaty is quite to the contrary. As stated above, the fundamental goal of the Convention was to create uniform rules and liability limits in international air travel. Under plaintiff's analysis, simply by inserting an indemnification or independent contractor clause, a carrier could contract out the very act of providing air transport and thereby escape the treaty in its entirety. No possible construction of the Convention can be reconciled with this result.
Certainly, the specific details of a contract cannot trump the provisions of a treaty that is the "supreme Law of the Land" under the Constitution, U.S. Const., Art. VI, § 2, and that has been adhered to by over 100 nations for more than fifty years. Here, as in Baker, the crucial consideration is that defendant ITS was providing legally mandated security services "in furtherance of the contract of carriage," Johnson, 488 A.2d at 1345, which the air carrier otherwise would have been required to provide and for which the carrier would have been liable. Under these circumstances, ITS's actions are subject to the Convention.
But plaintiff's argument also misconstrues defendant's contract with Air France. The presence of mutual indemnification clauses and the fact that ITS has insurance protection is entirely consistent with the Convention's applicability to ITS. This is particularly true since ITS has indemnified Air France for liability including claims of willful misconduct that are not subject to the recovery limits in the Convention. Likewise, the fact that ITS employees are not considered employees of Air France under the contract does not affect the conclusion that defendant served as Air France's agent in furthering the contract of carriage.
Plaintiff argues from a policy perspective that covering security agency contractors by the Warsaw Convention will raise costs to air carriers and relieve agents of liability for their own misconduct. These policy tradeoffs, however, were weighed when the Convention was adopted, and it is not for this court to second-guess choices the ratifying countries made and to which the international community consistently has adhered. Rather, the overwhelming public policy consideration presented here is that "the rules governing international aviation remain uniform and that liability limitations remain intact, regardless of whom a plaintiff may choose to name as a defendant in a particular case." Johnson, 488 A.2d at 1345.
V. OTHER CLAIMS
Finally, plaintiff challenges defendant's authority to invoke the Convention at this time. Plaintiff argues that under Rules 8 and 12 of the Federal Rules of Civil Procedure the Convention must be raised either as an affirmative defense or in defendant's answer and that defendant has waived this opportunity. Plaintiff also argues collateral estoppel should prevent defendant from invoking the Convention at this time. See Highlands Ins. Co. v. Trinidad and Tobago (BWIA International) Airways, 739 F.2d 536 (11th Cir. 1984). Both arguments necessarily fail.
Plaintiff cites a number of cases in which the Warsaw Convention's limitations have been raised as a defense by the carrier or its agent. See Reed v. Wiser, 555 F.2d 1079; Baker v. Lansdell Protective Agency, 590 F. Supp. 165 . None of these cases, however, stands for the proposition that the Convention's protection is waived if not initially raised as an affirmative defense, as plaintiff attempts to assert.
Indeed, because the Warsaw Convention provides an exclusive remedy where it is applicable, defendant cannot be required to raise the Convention as an affirmative defense in order to benefit from its protection. To hold otherwise would create the absurd situation in which a treaty, explicitly intended to create uniform rules and to provide an exclusive remedy, was applicable only where one of the parties happened to invoke it. Such an interpretation would violate both the language of the Convention and its fundamental goal of uniformity. See Reed v. Wiser, 555 F.2d 1079.
Nor does defendant's invocation of the Convention at this time unduly burden plaintiff's case at a level justifying collateral estoppel. Defendant first raised its concern to plaintiff less than four months after the Complaint was filed and prior to the close of discovery. Although discovery is now complete, Count Two of plaintiff's Complaint alleges willful misconduct, and some discovery on willful misconduct already has been conducted. The accompanying Order provides for further discovery on this question to ensure plaintiff's ability to pursue her case is not adversely affected by this ruling.
To conclude, at the time of the alleged theft, plaintiff's carry-on bag was in the charge of defendant, who served as the carrier's agent in performing tasks legally required of the carrier by federal law. The Warsaw Convention thus provides plaintiff's sole remedy and all claims inconsistent with the Convention, including plaintiff's claims for punitive damages, must be stricken. Plaintiff's recovery, if any, shall be limited to 5,000 French francs unless plaintiff can demonstrate willful misconduct on the part of ITS.
Dated: October 15, 1992
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE
ORDER - October 15, 1992, Filed
For the reasons stated in the accompanying Memorandum, it is this 15th day of October, 1992, hereby
ORDERED: that defendant's Motion to Dismiss the Complaint for Failure to State a Cause of Action or in the Alternative to Strike All Claims Inconsistent with or Barred by the Warsaw Convention shall be treated as a motion for partial summary judgment and should be, and is hereby, GRANTED, and that plaintiff's remedies shall be limited exclusively to the terms of the Warsaw Convention; and it is further
ORDERED: that discovery limited to the question of defendant's willful misconduct shall be allowed to proceed until November 30, 1992; and it is further
ORDERED: that defendant's Motion for Leave to File an Amended Answer should be, and is hereby, DENIED as moot.
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE