Houston's Clear Thinkers

I am the attorney who represented George Mbaba in Mbaba v. Air France from inception. We will be filing a petition for writ of certiori to the U.S. Supreme Court within the next 90 days.

Although we agree that Air France's handling of this small case was as commercially foolish as it was arrogant, we also strongly believe that the Fifth Circuit was not "right on the law." In fact, in holding that the Warsaw Convention preempts all claims not specifically allowed under the Convention, the Fifth Circuit stands alone and in conflict with the First, Third, Ninth, and Eleventh Circuit courts of appeals, as well as many lower federal courts and state courts of appeals. Here are case citations and six sound bites from the several appellate courts who agree with our position in this case:

(i) Floyd v. Eastern Airlines, 872 F.2d 1462, 1481 (11th Cir. 1989), rev’d on other grounds, 499 U.S. 530 (1991).

“Causes of action based on state law can go forward when the Warsaw Convention does not apply. The Convention does not prohibit state or federal causes of action based on situations which the Convention was not intended to govern…. In those aspects of the passenger-carrier relationship which the Convention does not address, it does not apply at all, and local law must govern.”

(ii) Abramson v. Japan Airlines Co., Ltd., 739 F.2d 130, 134 (3d. Cir. 1984).

When the Warsaw Convention is inapplicable to the claim raised, “it does not serve as a bar to alternate theories of recovery."

(iii) In re Aircrash in Bali, Indonesia on April 22, 1974, 684 F.2d 1301, 1307, n.8 (9th Cir. 1982).

“This is clearly not a case in which Congress [by ratifying the Warsaw Convention] intended to preempt all state legislation in the field, since the Convention specifically requires the application of local law to some issues….” (at p. 1311) The Warsaw Convention “has never been read to limit plaintiffs to a cause of action arising thereunder, but rather to limit the recovery in suits for injury.”

(iv) Martinez Hernandez v. Air France, 545 F.2d 279, 284 (1st Cir. 1976) cert. denied, 430 U.S. 950 (1977).

A passenger injured after disembarkation (when Warsaw Convention Article 17 is inapplicable), is left “to remedies of local law.”

(v) Husserl v. Swiss Air Transport Co., 351 F. Supp. 702, 706 (S.D.N.Y. 1972), aff’d, 485 F.2d 1240 (2nd Cir.1973), overruled on other grounds, Eastern Airlines v. Floyd, 499 U.S. 530, 534 n.3 (1991) (holding that Warsaw Convention does not allow recovery for “purely mental injuries”).

“[T]he [Warsaw] Convention does not exclusively regulate the relationship between passenger and carrier on an international flight…. [I]f the Convention ‘applies,’ it applies to limit—not eliminate—liability; if it does not apply, it leaves liability to be established according to traditional common law rules.”

(vi) Imtiaz v. Emery Air Freight, Inc., 728 S.W.2d 897 (Tex. App.—Houston [1st Dist.] 1987, no writ).

“[Plaintiffs’] allegations regarding Emery Airfreight’s misrepresentations were sufficient to state a prima facie cause of action for damages under the Texas Deceptive Trade Practices Act, TEX. BUS. & COM. CODE ANN. secs. 17.41-17.63 (Vernon Supp. 1987), and that claim is not governed by the Warsaw Convention.”

Jeffrey L. Dorrell
Houston
Attorney for George & Patience Mbaba

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