ELISA CHAN, ET AL., PETITIONERS V. KOREAN AIR LINES, LTD.

   No. 87-1055

   In the Supreme Court of the United States

   October Term, 1987

   On Writ of Certiorari to the United States Court of Appeals for the
District of Columbia Circuit

   Brief for the United States as Amicus Curiae supporting Petitioners

           TABLE OF CONTENTS
   Question Presented
   Interest of the United States
   Statement
      A. The Warsaw Convention and the Montreal Agreement
         1. Pre-Warsaw Convention Proceedings
         2. The Warsaw Convention
         3. Post-Warsaw Convention Proceedings and the Montreal
               Agreement
      B. Proceedings below
   Summary of argument
   Argument:
      The Warsaw Convention's liability limitation is not available to
      a carrier that fails to provide notice of the applicability of
      the Convention's liability rules on a passenger ticket in
      ten-point type, as required by the Montreal Agreement
      A. The Warsaw Convention denies the protection of the
         Convention's limitation on liability to an air carrier that
         has failed to provide adequate notice on the passenger ticket
         of the applicability of the Convention's liability rules
      B. The Montreal Agreement's ten-point type standard supplies the
         measure for determining respondent KAL's compliance with the
         Warsaw Convention requirement that it provide notice of the
         Convention's liability rules on a passenger's ticket
   Conclusion

                          QUESTIONS PRESENTED

   Whether the limitation prescribed by the Warsaw Convention on an
air carrier's liability applies only where notice of the applicability
of the Convention's liability rules is printed on an airline
passenger's ticket in at least ten-point type, as required by the
Montreal Agreement.

                     INTEREST OF THE UNITED STATES

   This case presents a question of recurring importance concerning
the meaning of certain provisions of the Warsaw Convention /1/ and
Montreal Agreement.  /2/ The Warsaw Convention creats a uniform regime
to govern the international carriage of passengers, baggage and cargo
by air, including rules governing passenger tickets, baggage checks,
and air freight bills of lading (waybills), and regulates the
liabilities of carriers.  The Montreal Agreement is a private
agreement among air carriers, approved by the Civil Aeronautics Board,
committing them to enter into agreements with passengers pursuant to
Article 22(1) of the Warsaw Convention, which increase the
Convention's limitation on liability, and committing them also to give
a specified notice of that limitation (App., infra, 12a-13a).  See
Pet. App. B4-B5.

   The court of appeals held that the failure to provide notice of the
applicability of the Warsaw Convention's liability rules in ten-point
type, as required by the Montreal Agreement, does not preclude an air
carrier from availing itself of the Convention's limitation of
liability at the level set by the Montreal Agreement.  The court's
opinion is inconsistent with the longstanding view of the Executive
Branch that adequate notice to the passenger of the Convention's
liability limitation is a precondition to enforcement of that
limitation.  It also undermines the Montreal Agreement's ten-point
type requirement, insisted on by the United States in 1966 as a
condition for withdrawing its notice of denunciation of the Warsaw
Convention.  For this reason, the Court's resolution of the question
presented is of interest to the United States, which continues to
regard the Warsaw Convention as a binding international greement.
Also because victims of airplane accidents and their representatives
sometimes sue both the United States and air carriers for damages, and
the Convention's liability limitation applies only to air carriers,
this Court's resolution of the question presented may affect the
extent of the government's liability in future litigation.  /3/

                               STATEMENT

   A. The Warsaw Convention and the Montreal Agreement

   1. Pre-Warsaw Convention Proceedings:  The Warsaw Convention of
1929 was the product of an ambitious effort initiated by France to
achieve an international agreement on private aviation law.  In 1925,
45 nations sent delegates to participate in the first international
Conference on Private Aviation Law hosted by France in Paris.  See Air
France v. Saks, 470 U.S. 392, 401 (1985).  /4/ The delegates
considered a proposed draft agreement prepared by France (App., infra,
21a-22a (15a-16a)) /5/ and, following its revision, approved of a
draft agreement which provided both for a limitation on air carrier
liability and for the establishment of both passenger tickets and air
waybills, the latter concerning the air shipment of freight (id. at
25a-26a (19a-20a);  see also id. at 22a-24a (16a-19a) (report and
draft of conference committee)).  A committee of experts on private
aviation law -- Comite' International Technique D'Experts Juridiques
Ae'riens (CITEJA) -- was created to develop a draft agreement for the
conferees to vote on at a future conference (see id. at 27a (21a)).
See generally M. Smirnoff, Le Comite' International Technique
D'Experts Juridiques Ae'riens (C.I.T.E.J.A.) (1936).  CITEJA
established four commissions to draft agreements for CITEJA's plenary
consideration (App., infra, 31a-33a (28a-31a)).  The issues of the air
waybill and the liability of the air carrier towards shippers of goods
and passengers, among others, were assigned to the "Second Commission"
(id. at 32a-33a (29a-30a)).

   At CITEJA's second session, held in April 1927, the Second
Commission submitted a draft agreement concerning the form of the
waybill (App., infra, 53a-56a (40a-44a)), which CITEJA approved, with
revisions (id. at 57a (45a-46a);  see id. at 47a-53a (34a-40a) (CITEJA
debates)).  However, CITEJA also asked the Second Commission to
prepare a draft convention joining the air waybill agreement with an
agreement on the liability of air carriers (id. at 58a (46a)).  The
Second Commission met in March 1928, and prepared a new draft (id. at
92a-97a (72a-78a)) that included Articles dealing with passenger
tickets and baggage checks in a manner largely paralleling in
substance the provisions previously formulated for waybills (id. at
92a-97a (72a-73a);  compare 94a-97a (75a-78a) with 55a-56a (42a-44a)).
 In its Third Session, held in May 1928, CITEJA revised the
Commission's draft and approved it for submission to member nations at
a conference to be held in Warsaw.  See J.A. 181-193;  App., infra,
79a-92a (59a-72a) (CITEJA debates);  see also id. at 105a-107a
(98a-100a) (final CITEJA report).  /6/

   2. The Warsaw Convention:  During the Second International
Conference on Private Aviation Law, held in Warsaw in 1929, the
delegates adopted a revised version of CITEJA's final draft, now known
as the Warsaw Convention.  The chapter on transportation documents
establishes the requirements for passenger tickets (art. 3 (App.,
infra, 8a(1a)), baggage checks (art. 4 (App., infra, 8a-9a(2a)), and
air waybills (arts, 5-16 (App., infra, 9a-12a (2a-5a)), including
their legal effect and operation, information ("particulars") that
must be contained in each, and sanctions for violation of the
Convention's requirements regarding the documents.  Under Article
3(1), the carrier must deliver a "ticket" to the passenger, which must
contain, inter alia, "(a) statement that the transportation is subject
to the rules relating to liability established by this convention"
(App., infra, 8a(1a)).  The consequence, under Article 3(2), of a
"carrier accept(ing) a passenger without a passenger ticket having
been delivered" is that the carrier is "not * * * entitled to avail
himself of those provisions of th(e) convention which exclude or limit
his liability" (App., infra, 8a(1a)).

   The chapter on air carrier liability establishes, in Article 22,
limitations on air carrier liability for any injury to passengers or
damage to checked baggage or to goods (App., infra, 12a-13a (5a-6a)).
The liability limitation for passengers is 125,000 Pointcare' francs
(then approximately $8,300) (ibid.).  Articles 20 and 21 provide the
carrier with certain defenses to liability claims (App., infra, 12a
(5a)), and Article 25 removes the liability limitation "if the damage
is caused * * * by wilful misconduct" (App., infra, 14a (7a)).
Finally, in the last chapter, Article 39 gives each nation the right
formally to withdraw from the Convention, effective six months after
notice of denunciation (App., infra, 14a (7a)).

   The United States became a party to the Warsaw Convention in 1934,
following a voice vote in the Senate.  See 78 Cong. Rec. 11582 (1934);
 see generally Lowenfeld & Mendelsohn, The United States and the
Warsaw Convention, 80 Harv. L. Rev. 497, 502 (1967).  There were no
congressional hearings, reports, or debate on the question.  See TWA,
Inc. v. Franklin Mint Corp., 466 U.S. 243, 273 (1984) (Stevens, J.,
dissenting).

   3. Post-Warsaw Convention Proceedings and the Montreal Agreement:
The Hague Protocol of 1955 amended the Warsaw Convention in several
respects.  See J.A. 245-277.  The liability limitation was
approximately doubled to 250,000 Poincare' francs (currently worth
approximately $20,000), and certain air carriers' defenses were
eliminated.  In addition, the Conference adopted the United States'
proposal to amend Article 3 in two significant respects.  First, the
notice requirement in Article 3(1) was revised to demand that the
ticket include a statement that the Warsaw Convention "may be
applicable" if the passenger's journey involves travel in more than
one country and that the Convention "in most cases limits the
liability of carriers." Second, Article 3(2) was amended to provide
that "if * * * the passenger embarks without a passenger ticket having
been delivered, or if the ticket does not include the notice required
by * * * this Article, the carrier shall not be entitled to avail
himself of (Convention's liability limitation)." See J.A. 252-255;
see also id. at 215, 230.  The United States, however, declined to
ratify the Hague Protocol because it found insufficient the increase
in liability limits for claims involving death or bodily injury.
Lowenfeld & Mendelsohn, supra, 80 Harv. L. Rev. at 510-516, 532-546,
564.

   On November 15, 1965, the United States gave notice of its
intention to denounce the Warsaw Convention, and thus to withdraw
effective in six months, pursuant to Article 39 of the Convention.  At
the same time, the United States made clear that it would rescind the
notice of denunciation if the contracting nations appeared likely to
agree to increase the liability limit to approximately $100,000, and
the carriers agreed, in the interim, to increase the liability limit
to $75,000.  See J.A. 278.  One the eve of the planned denunciation,
the carriers agreed to the $75,000 liability limitation and to other
United States demands.  This Agreement, know as the Montreal Agreement
of 1966 (Pet. App. B4-B6), was approved by the Civil Aeronautics Board
(CAB) on May 13, 1966 (see J.A. 285-288;  31 Fed. Reg. 7302 (1966)),
and the United States withdrew its proposed denunciation of the
Convention in light of the Agreement (J.A. 281-284;  see Lowenfeld &
Mendelsohn, supra, 80 Harv. L. Rev. at 586-596).

   Under the Montreal Agreement, virtually all air carriers conducting
international flights into or out of the United States agreed to
include in their tariffs a special contract under which the liability
limit for death or bodily injury would be raised voluntarily to
$75,000 inclusive of legal fees and costs (or $58,000 exclusive of
legal fees and costs) for each passenger (Pet. App. B4).  The carriers
further agreed to provide in their tariffs that they would waive their
right to assert the due care defense provided by Article 20(1) of the
Convention (Pet. App. B4).  Finally, the carriers agreed "at the time
of delivery of the ticket, (to) furnish to each passenger whose
transportation is governed by the (Warsaw Convention) * * *" a notice,
set out verbatim in the Agreement, "printed in type at least as large
as 10 point modern type" advising the international passenger that the
Warsaw Convention's liability limitations may apply to the journey
(Pet. App. B5).  /7/

   B. Proceedings Below

   On September 1, 1983, Korean Air Lines (KAL) Flight 007, a
commercial flight, departed from Kennedy Airport for Seoul, South
Korea.  The airplane strayed into the Soviet Union's airspace, where
it was destroyed by a missile launched by a Soviet military aircraft.
All the passengers and crew members were killed.  Petitioners,
representatives of passengers who were killed, brought damage actions
against respondent KAL in several federal district courts, including
the Southern and Eastern Districts of New York, Eastern District of
Michigan, District of Massachusetts, and District of Columia.  The
Judicial Panel on Multidistrict Litigation transferred these actions
to the District Court for the District of Columbia for pretrial
proceedings.

   Petitioners filed with the district court a motion for partial
summary judgment in which they sought a declaration that respondent
KAL could not rely on the Warsaw Convention's liability limitation, as
modified by the Montreal Agreement, because the notice of that
limitation appeared on the passengers' tickets in eight-point rather
than ten-point type (Pet. App. A13).  The district court denied
petitioner's motion, ruling that the liability limitation applied.

   According to the court, "defects in the physical ticket are not to
interfere with the enforceability of the liability rules" (Pet. App.
A31).  "Indeed," the court noted, "inadequate notice through the
statement could be considered an 'irregularity" or defect in the
passenger ticket which 'shall not affect the existence or the validity
of the contract of transportation, which shall nonetheless be subject
to the rules of this convention'" (ibid. (quoting Article 3(2));  Pet.
App. B1).  "(T)he quid pro quo for the limitation is, not notice, but
liability without fault.  * * * There is no evidence that the treaty
drafters and signatories intended 'adequate notice' to affect the
operation of the treaty limitation" (id. at A34).

   The district court likewise rejected petitioners' claim that the
Montreal Agreement was intended to lift the liability limitation if
the air carrier failed to include notice of that limitation on the
passenger ticket in at least ten-point type (Pet. App A37-A40).
According to the court (id. at A38), the Montreal Agreement "did not
alter the quid pro quo by linking Articles 22 and 20 with Article 3."
"Nothing in the debate or dissatisfaction with the limitation which
led to the Montreal Agreement confirms the contention that 'adequate
notice' was an issue" (Pet. App. A37).  In any event, the Court found
(id. at A39) a "basic flaw" in petitioner's agrument to be "the
assumption that the Montreal Agreement can operate as an amendment to
the Warsaw Convention;  it cannot." "Under the (Warsaw) Convention's
provisions, the carrier and the passenger may agree to a higher limit
of liability.  While the limit may be raised, nothing in the 'special
contract' provision (of the Convention) allows it to be completely
removed" (ibid.).  The court noted, however, that "(w)ere (it) faced
with a clear, political decision to avoid the, treaty limitation where
there has not been 'adequate notice,' however defined, or were it
faced with an express waiver, * * * then a different decision would be
possible" (ibid.).

   2. The court of appeals affirmed (Pet. App. A1-A11).  The court
"adopt(ed) as (its) opinion the comprehensive (opinion) of the
district court," which the court of appeals reprinted as an appendix
to its own decision (id. at A4, A12-A42).

                          SUMMARY OF ARGUMENT

   Respondent KAL is not entitled to rely on the liability limitations
of the Warsaw Convention because its passenger ticket failed to
provide the required notice of the applicability of the Convention's
liability rules in at least ten-point type, as required by the
Montreal Agreement.

   1. First, Article 3(1) of the Warsaw Convention explicitly requires
the air carrier to deliver to the passenger a "ticket" that contains
notice of the applicability of the Convention's liability rules.
Article 3(2) states that a carrier who accepts a passenger without a
"ticket" having been delivered may not invoke the Convention's
provisions limiting liability.  Similar sanction provisions in other
Articles of the Convention add that the liability limitation may be
lost for the additional reason of failure to comply with specified
particulars -- including the notice requirements.  Contrary to the
court of appeals' opinion, a comparison of Article 3(2) to these
parallel provisions in other Articles does not unambiguously establish
that the Convention intended to leave the liability limitation in
effect where a carrier delivers a ticket that lacks the required
notice.  The language may also be read to include the notice of
limited liability as an essential element of any "ticket whose
delivery is necessary if the liability limits are to remain in effect.

   The history of the Convention's preparation and adoption indicates
that the drafters intended that the same loss of liability limitation
was to result from failure to comply with the notice requirement in
the case of passenger tickets, as in the case of baggage checks and
air waybills.  The differences in language appearing in Article 3(2),
as contrasted with Articles 4(2) and 9, are explicable not by any
intention to withhold the sanction for failure to give notice under
Article 3, but rather as the unhappy consequence of two amendments
that worked together to create an implication that neither of them
intended.  Indeed, one of the amendments was intended to make it
clearer that the sanction would apply in that very circumstance.
Hence, the negative implication upon which respondent KAL relies does
not accurately reflect the parties' intent.

   2. This Court need not step outside its limited judicial function
to rule that the Montreal Agreement's ten-point type standard supplies
the measure for determining compliance with the Warsaw Convention's
notice requirement.  Respondent is a party to the Montreal Agreement,
which is a commitment among carriers to offer to passengers an
increased ceiling on liability -- as expressly contemplated in Article
22(1) of the Convention -- and to set forth in an agreed upon form a
particular notification of that limitation.  Contrary to the opinion
below, there is no bar to the air carriers' agreeing to comply with
the Convention's notice requirement in a particular manner.
Certainly, the carriers are hard pressed to argue that a violation of
the Montreal Agreement's notice standard is unrelated to the
requirements of the Warsaw Convention, in implementation of which the
Montreal Agreement was executed.

   In any event, the ten-point type standard provides a clear,
well-settled standard that should be applied as the judicial measure
for determining compliance with the Warsaw Convention's notice
requirement.  The ten-point standard reflects longstanding judgment of
the expert federal agency (formerly the Civil Aeronautics Board and
currently the Department of Transportation) concerning the size of
type providing sufficient notice of the liability rules.  Such a clear
and definite standard is also far more desirable for all concerned
than respondent's proposal that courts engage in ad hoc factual
inquiries into the adequacy of notice in individual cases.

                               ARGUMENT

   THE WARSAW CONVENTION'S LIABILITY LIMITATION IS NOT AVAILABLE TO A
CARRIER THAT FAILS TO PROVIDE NOTICE OF THE APPLICABILITY OF THE
CONVENTION'S LIABILITY RULES ON A PASSENGER TICKET IN TEN-POINT TYPE,
AS REQUIRED BY THE MONTREAL AGREEMENT

   "When a legal distinction is determined, as no one doubts that it
may be, between night and day, childhood and maturity, or any other
extremes, a point has to be fixed or a line has to be drawn, or
gradually picked out by successive decisions, to mark where the change
takes place." Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 41
(1928) (Holmes, J., dissenting).  So it is in this case.  To many, the
Montreal Agreement's requirement that carriers provide notice of the
applicability of the Warsaw Convention's liability rules on a
passenger ticket in at least ten-point type may seem arbitrary.
Certainly, "(i)tmight as well or nearly as well be a little more to
one side or the other" (ibid.).  Yet the United States withdrew its
notice of denunciation of the Warsaw Convention only upon extracting
from air carriers their agreement to adhere to that very requirement.
Hence, the importance of the ten-point type standard to the United
States cannot be gainsaid.

   Airline carriers may not, moreover, fairly argue that it is unduly
harsh to deprive them of the Convention's liability limitation when
they fail to provide passengers with the required notice in ten-point
type on the ticket.  For over 20 years, the air carriers have had
notice of the ten-point type standard and have agreed to its strict
adherence.  That standard, once declared, hardly seems the sort to
make ready compliance burdensome.  Indeed, in many respects, the
ten-point type standard would seem far preferable to air carriers than
the more vague standard that notice must be "adequate."

   For whatever reason, however, some carriers, such as respondent KAL
in this case, seem unable or unwilling to achieve compliance with the
clear standard and thus would have the Court, like the court of
appeals, apply its own notion of what constitutes "adequate notice"
(Pet. App. A37).  We believe their invitation should be declined and
the Montreal Agreement's ten-point standard strictly honored.  We
believe, moreover, that the sanction supplied by the Warsaw
Convention, and furthered by the Montreal Agreement, for failure to
include the requisite notice should apply where the ten-point type
standard has not been met.  Any seeming inequity in application of
that sanction is, particularly at this late date, not unduly harsh;
for the sanction is self-inflicted.

   A. The Warsaw Convention Denies the Protection of Convention's
Limitation on Liability to an Air Carrier That Has Failed to Provide
Adequate Notice on the Passenger Ticket of the Applicability of the
Convention's Liability Rules

   1. The threshold question presented by this case concerns what
condition, if any, Article 3 of the Warsaw Convention imposes on an
air carrier in order to avail itself of the Convention's limitation on
liability, which may work a considerable hardship on passenger victims
of airline accidents.  "The analysis must begin * * * with the text of
the treaty and the context in which the written words are used." Air
France v. Saks, 470 U.S. 392, 396-397 (1985) (citation omitted);
Societe National Industrielle Aerospatiale v. United States District
Court for the District of Iowa, No. 85-1695 (June 15, 1987), slip op.
10.  In this case, the relevant treaty language is ultimately
ambiguous because it admits of two different, and conflicting,
interpretations.  Article 3(1) provides that "the carrier must deliver
a passenger ticket which shall contain the following particulars," and
lists among those particulars "(a) statement that the transportation
is subject to the rules relating to liability established by this
convention" (App., infra, 8a (1a)).  Article 3(2) then provides that
"if the carrier accepts a passenger without a passenger ticket having
been delivered he shall not be entitled to avail himself of those
provisions of this convention which exclude or limit his liability"
(App., infra, 8a (1a)).  A fair reading of these provisions, taken
together, is that an air carrier has not "delivered" a "ticket" within
the meaning of Article 3(2), unless it contains the required
"statement" of limited liability, and thus, in that circumstance, may
not avail himself of the liability limitation.

   Viewed "as a whole" (K Mart Corp. v. Cartier, Inc., No. 86-495 (May
31, 1988), slip op. 7-8), however, the language and structure of the
Convention introduces an ambiguity into what would otherwise have
seemed the plainly correct reading of Article 3.  Specifically, a
comparison of the language and structure of Article 3 and Article 4
(concerning baggage checks) suggests a different construction.  Both
Articles list in their respective first paragraphs those "particulars"
that must be included on a ticket (art. 3) or baggage check (art. 4)
(App., infra, 8a-9a (1a-2a)).  In virtually identical language,
moreover, both include the notice requirement as such a required
"particular" (arts. 3(1)(e) and requirement as such a required
"particular" (arts. 3(1)(e) and 4(1)(h)).  Both Articles, in their
second paragraphs (arts. 3(2) and 4(2)), also impose the same sanction
of the air carrier's loss of the protection of the Convention's
liability limitation.

   Articles 3 and 4 differ sharply, however, in their respective
descriptions of the circumstances triggering that sanction.  Both
Articles explicitly make the liability limitation inapplicable where
the carrier fails to deliver the relevant document -- a ticket for
passengers (art. 3(2)), or a baggage check for baggage (art. 4(2)).
Unlike Article 3, however, Article 4 is also explicit in imposing that
sanction where "the baggage check does not contain the particulars set
out at (art. 4(1))(d), (f), and (h) above" (App., infra, 9a (2a)).
Article 4(1)(h) is the section requiring that the baggage check give
notice of the limitation on liability.

   Article 4(2) thus appears to distinguish between not delivering a
baggage check at all, and delivering a baggage check that fails to
contain all of the particulars.  It denies the protection of the
liability limitation only for the omission of certain explicitly noted
particulars.  Article 9 does the same for waybills.  /8/ Particularly
because both Articles 4(2) and 9 single out the notice requirement as
triggering the sanction, the absence of a comparable clause in Article
3(2) provides support for respondent's view that the parties to the
Convention did not intend to deny the limitation on liability based on
any omission of particulars, including the notice of liability
limitation.

   The contrasting language in Articles 4 and 9 undercuts the apparent
meaning of Article 3, read in isolation, but it does not compel
acceptance of respondent's contrary reading.  /9/ It rather creates a
dilemma between the most plausible reading of Article 3, which gives
force to its requirement that a "ticket" be delivered, and the
structure of Articles 4 and 9, which suggests that an explicit
withdrawal of the liability limitation would have been set forth if
intended.  In such circumstances, "'to ascertain (Article 3(2)'s)
meaning we may look beyond the written words to the history of the
treaty, the negotiations, and the practical construction adopted by
the parties'" (Air France v. Saks, 470 U.S. at 396 (quoting Choctaw
Nation of Indians v. United States, 318 U.S 423, 431-432 (1943);
Societe Nationale Industrielle Aerospatiale v. United States District
Court of the Southern District of Iowa, slip op. 10-11)).

   2. "(T)he 'travaux preparatories' of the Warsaw Convention are
published and generally available to litigants (and) courts freguently
refer to these materials to resolve ambiguities in the text." Air
France v. Saks, 470 U.S. at 400 (citations omitted).  They show that,
virtually from the outset, the persons responsible for negotiating and
drafting the treaty intended that the limitation of liability would
not be available if notice of that limitation were not included in a
passenger ticket, baggage check, or waybill.  There is no compelling
evidence that the treaty drafters at any time decided to distinguish,
in that regard, passenger tickets from baggage checks and waybills.

   a. The treaty drafters had early on recognized the need for
sanctions for non-compliance with provisions of the Convention (App.,
infra, 22a-23a (16a)).  They adopted the "eminently practical" scheme
of depriving a carrier of the benefits of the Convention after
determining that they could not rely on each nation to adopt the
necessary domestic penal legislation (id. at 47a-49a (35a-37a),
54a-55a (42a)).  The withdrawal of the liability limitation as a
sanction for failure to provide notice of that limitation was first
advanced in the draft proposal regarding waybills prepared by CITEJA's
Second Commission (id. at 56a-57a (44a-45a);  see id. at 51a-52a
(38a-39a) (CITEJA debate)).

   The same scheme was subsequently applied both to passenger tickets
and baggage checks in the draft agreement of the Second Commission
concerning both the waybill and the air carrier's liability towards
shippers and passengers (App., infra, 92a (72a-73a), 94a-96a
(75a-77a)).  The requirement of a notice of limited liability was set
forth, in Articles 3 and 4 of the new draft, as a separate paragraph
in the same Article setting forth the required particulars.  /10/ In
that respect those Articles differed from the waybill provision, where
it was set forth in a separate Article from the particulars themselves
(App., infra, 97a (78a)).

   The sanction provison in Articles 3 and 4 of the Second Commission
draft stated that an air carrier that failed to draw up a ticket or
baggage check containing the listed particulars could not invoke the
Convention's liability limitation (App., infra, 95a (86a), 96a (77a)).
 Article 4(2) specifically referred to particulars set forth at
4(1)(a)-(d) as triggering the sanctions (App., infra, 96a (77a)).  It
did not refer to the particulars then listed in Article 4(1)(e) and
(f), which were unique to baggage checks.  Article 3(2), which
contained the same initial four particulars as Article 4, at Article
3(1)(a)-(d), but did not contain particulars (e) and (f), simply
provided that "if the carrier did not establish a passenger ticket
containing the particulars indicated above, * * * the carrier would
not be entitled to rely on the provisions of the Convention which
exclude or limit his responsibility" (App., infra, 95a (76a)).  In
neither Article 3 nor 4 did the sanction provision refer explicitly to
the required statement of limited liability, which was set out in the
Article with, but separate from, the list of particulars.  However,
the accompanying CITEJA working papers evidence that the drafters
intended the limitation of liability to be inapplicable when the
carrier failed to give the required notice on either a passenger
ticket or baggage check.  The Second Commission's Report states that
the "same" sanction shall apply as under the Articles dealing with
waybills for the transportation of goods, which expressly provide that
a carrier cannot invoke the liability limitation in the absence of the
required notice on the waybill regarding those liability rules (App.,
infra, 88a (68a), 97a (78a);  see also id. at 56a-57a (43a-45a) (prior
version)).  See id. at 92a (73a) ("(T)he sanction for transporting
passengers without regular tickets is the same as that for
transportation of baggage and goods.");  see also ibid. ("The remark
concerning passengers applies to their baggage as well:  a special
article covers the baggage check.").

   b. The same basic treaty structure persisted until the time that
CITEJA approved of its final draft agreement for submission to the
Warsaw Convention.  While some changes were made in the language of
the relevant provisions during CITEJA's final drafting sessions (and
resulted in frequent renumbering of Articles), there is no suggestion
in CITEJA's working papers that any of those changes were intended to
modify the operation of the sanction clause.  /11/ None of the changes
made -- nor, indeed, and of those proposed -- sought to single out
passenger tickets for different treatment.  Nor were any directed to
the notice requirements.  /12/ CITEJA's final report to the Convention
delegates stressed, like its earlier reports, that the same sanctions
applied equally to passenger tickets, baggage checks, and waybills
(App., infra, 107a (101a) ("(T)he sanction given for the
transportation of passengers without a ticket or with a ticket that
does not conform to the Convention is the same as that given for the
transportation of baggage and that of merchandise.")).

   c. The contrasting language in Articles 3, 4, and 9, upon which
respondent KAL principally relies, is the product of two amendments
adopted at the Warsaw Conference itself.  An examination of the
circumstances and objectives of both of those amendments suggests that
any implication derived from a comparison of the language of Article 3
with the language and structure of Articles 4 and 9 -- that the
parties to the Convention intended a different result under Article 3
-- does not accurately reflect the parties' true intent.  Neither
amendment purported to distinguish between Articles 3 and 4.  Nor was
either prompted by an intent to allow the liability limitation to
remain in effect where notice of it had not been provided.  Indeed,
one of the amendments was proposed to make it clear that the
limitation would be inapplicable under Article 3 if the carrier failed
to comply with the notice requirement.

   To be sure, the first amendment, which was proposed by the Greek
delegation, was intended to limit the circumstances under which the
liability limitation would be inapplicable under Articles 3 and 4
(App., infra, 116a-118a (111a-112a)).  But that proposal rendered the
sanction inapplicable only as to failures to satisfy the particulars
then listed in Article 3(1), some of which were also listed in Article
4(1).  Significantly, at the time the Greek delegation offered its
amendment, CITEJA's final draft was under consideration, which did not
list the notice requirement as one of the "particulars" in Article
3(1) or Article 4(1), but which rather set it forth separately (see
J.A. 182, 183;  see also App., infra, 114a (109a) (amendments
submitted prior to Conference)).

   As explained by the Greek delegation, an amendment was necessary
because the sanction (loss of liability limitation) was too severe
where an error in one of the listed particulars was the result of the
negligence of an employee of the carrier (App., infra, 116a-117a
(111a-112a);  see also id. at 51a-53a (38a-40a), 82a-83a (62a-64a)
(prior unsuccessful efforts)).  The illustrations offered by the Greek
delegation never referred to the notice requirement (ibid.).  /13/ The
Conference delegates agreed with the Greek concerns and, accordingly,
they omitted altogether the clause in Article 3(2)'s sanction
provision that applied the sanction where a carrier delivered a ticket
not containing one of the listed particulars (J.A. 147-148);  and in
Article 4(2), the delegates revised the clause to remove those same
particulars from the list of particulars that triggered the sanction
(J.A. 154).  However, at the time of the delegates' consideration of
the amendment (see id. at 153-154), Article 4 contained other
particulars not set forth in Article 3, and as to which the delegates
wanted the sanction to apply.  Thus Article 4 -- but not Article 3 --
continued to make references to the withdrawal of the liability
limitation for failure to comply with certain particulars.

   At the same time, the Japanese delegation successfully proposed a
second amendment to Articles 3 and 4, which was intended to make it
clear that the liability limitation would be inapplicable where a
carrier failed to include the required notice on the passenger ticket
or the baggage check (App., infra, 118a (113a)).  This amendment was
formulated on the basis of the language in the draft treaty proposed
by CITEJA and was offered before, and not coordinated with,
consideration of the Greek delegation's amendment.

   The Japanese delegation was apparently concerned by the fact that
the draft agreement prepared by CITEJA never directly stated that the
limitation on liability would be lost in the absence of the required
notice (see App., infra, 118a (113a)).  Their concern was heightened
with respect to Article 4 (ibid.), presumably because the sanction
provision in Article 4(2), unlike Article 3(2), specifically listed
only some of the preceeding particulars as triggering the sanction
provision and, hence, might more readily have been misconstrued as
excluding any other requirement not specifically mentioned, including
the notice requirement.  The Japanese delegation accordingly
recommended that the notice requirement be listed in both Articles 3
and 4 and a "compulsory particular" (i.e., a particular that triggers
the sanction) (ibid.).  /14/ Significantly, however, the Convention
delegates appear to have treated the amendment to Article 3 as merely
technical in nature and without substantive effect.  /15/

   The Greek and Japanese amendments together, however, had a wholly
unintended consequence.  The resulting language, which lists the
notice requirement as a particular (the Japanese amendment), and omits
from the sanction provision the phrase withdrawing the limitation on
liability where there is a failure to set forth particulars (the Greek
amendment), suggests an intention to eliminate any sanction for an air
carrier's violation of Article 3's notice requirement.  While it is
unclear why this went undetected, it seems quite evident from the
available historical information that the difference in language does
not result from an intention to omit, as to passenger tickets, the
sanction that is applicable to baggage checks and waybills for
violation of the notice requirement.

   3. A related provision of the Warsaw Convention also makes such a
distinction improbable.  The likely objective of the notice
requirement, equally applicable to tickets, baggage checks, and air
waybills, was to allow individuals to exercise their right under
Article 22 to persuade the carrier to agree to a higher limit of
liability (App., infra, 12a-13a (5a-6a)) or, alternatively, to obtain
added protection from loss by purchasing private insurance.  /16/ In
the absence of notice, however, the passenger or shipper of goods is
effectively deprived of his rights under Article 22.  As described by
the Second Circuit in Lisi v. Alitalia-Linee Aeree Italiane, S.p.A.,
370 F.2d 508 (1966), aff'd by an equally divided court, 390 U.S. 455
(1968) (quoting Mertens v. Flying Tiger Line, Inc., 341 F.2d 851,
856-857, cert. denied, 382 U.S. 816 (1965)), " there would be little
reason (for Article 22) to require that the ticket state that the
liability of the carrier is limited (art. 3(1)(e)), and to require
that such a ticket be delivered to the passenger unless the Convention
also required that the ticket be delivered in such circumstances as to
afford the passenger a reasonable opportunity to take * * *
self-protective measures.'" See also 1 International Civil Aviation
Organization, International Conference on Private Air Law -- The
Hague, September 1955 -- Minutes 89-90 (1956) (hereinafter Hague
Minutes).  /17/

   4. Finally, "the practical construction adopted by the parties" to
the Warsaw Convention does not compel a different result.  Air France
v. Saks, 470 U.S. at 396 (citation omitted).  The Executive Branch's
view on this question is long standing and entitled to "great weight."
Societe Nationale Industrielle Aerospatiale v. United States District
Court for the Southern District of Iowa, slip op. 12 n.19;  Sumitomo
Shoji America, Inc. v. Avagliano, 457 U.S. 176, 184-185 (1982).  Over
twenty years ago, we advised this Court of our views on this issue in
response to this Court's invitation in Lisi (No. 67-70).  /18/ We
advanced then the same construction of Article 3's sanction provision
that we press now.  Contrary to claims made in that case (see J.A.
289, 291), moreover, our Lisi submission did not represent a departure
from our previous position.  The United States' proposal at the Hague
Conference in 1955 to amend Article 3(2) of the Warsaw Convention,
which made explicit what we believe had previously been implicit in
that Article -- that the sanction should apply in the absence of fair
notice -- was merely clarifying in that respect.  See Hague Minutes 61
(summary of remarks of Mr. Calkins (U.S.)) ("His delegation did not
agree in all respects with the Rio Protocol.  However, it did agree
with the retention of the present sanction requirements in general for
failure to set forth the appropriate specifications on the tickets.").
 The United States did not there state that the sanction would not
apply in the absence of such amendment.  The United States Senate's
failure to consent to ratification of the Hague Protocol was also not
based on any dissatisfaction with the sanction provision, as amended.
See generally, Lowenfeld Mendelsohn, supra, 80 Harv. L. Rev. at 512.

   Nor do we think that the contrary views of other signatories to the
Warsaw Convention should be controlling.  /19/ While those views are
normally entitled to "considerable weight" (Air France v. Saks, 470
U.S. at 404 (citation omitted)), they are less weighty in this case
for two reasons.  First, they conflict with the view expressed by the
United States, which is also a party to the Convention.  Hence, there
is no consensus among the parties.  Second, unlike the United States,
those nations have all ratified the Hague Protocol, which, among other
things, amended the Convention to make explicit that the liability
limitation is lost unless notice of it is given on the passenger
ticket.  Those nations are therefore less interested than the United
States in the Warsaw Convention's original meaning.  Moreover, their
ratification of the Hague Protocol suggests their agreement with our
basic view that the liability limitation should be lost in the absence
of the required notice.

   B. The Montreal Agreement's Ten-Point Type Standard Supplies the
Measure for Determining Respondent KAL's Compliance With the Warsaw
Convention's Requirement That it Provide Notice of the Convention's
Liability Rules on a Passenger's Ticket

   We also believe that KAL did not satisfy the Warsaw Convention's
notice requirement on those passenger tickets that did not include
notice of the applicability of the Convention's liability rules in at
least ten-point type, as required by the Montreal Agreement.  The
court of appeals' contrary view ignores the relationship, both
historical and legal, between the Montreal Agreement and the
Convention.  By replacing a clear standard with an unclear one, it
undermines the certainty needed by air carriers, passengers, and
courts alike.  It also fails to give appropriate weight to the
Executive Branch's judgment regarding the relationship between type
size and notice to passengers.

   1. First, the lower courts failed to appreciate the special
relationship between the Montreal Agreement and the Warsaw Convention.
 The Montreal Agreement is not merely a private agreement among air
carriers approved by the federal government.  As the title of the
agreement makes plain, it is an "agreement Relating to Liability
Limitations of the Warsaw Convention and Hague Protocol" (Pet. App.
B4), which commits the signators to enter into special contracts,
pursuant to Article 22(1) of the Convention, including an increased
liability limitation of $75,000.  The Montreal Agreement sets forth
explicitly the notice of limitation of liability, required to be
printed on the ticket "in type at least as large as 10 point modern
type and in ink contrasting with the stock" (Pet. App. B5).  This very
specific notice requirement is plainly intended to define the way in
which the Convention's corresponding notice provision is to be
satisfied (id. at A38-A39).  The Montreal Agreement is consistent with
the terms of the Convention and does not purport, or need to, "amend"
the Convention itself in order to be legally effective.  /20/ Hence,
although the Agreement is binding only on the carriers who were
parties to it -- and, of course, does not bind other nations /21/ --
it is fair to hold those parties to the bargain struck.  Respondent is
a party to the Montreal Agreement (see Pet. App. B9;  14 C.F.R. Pt.
203).

   As shown by both the history and terms of the Montreal Agreement,
moreover, its notice provision is an essential part of that bargain.
The United States agreed to withdraw its notice of denunciation of the
Convention only after exacting a few critical concessions from the
carriers.  /22/ The Agreement consists of only two numbered
paragraphs, one of which is the requirement of a particular form of
notice (Pet. App. B4-B6).  The air carriers agreed to both in order to
avoid losing the benefit of the Convention's liability limitations
altogether in United States flights.  Having done so, they should not
now be allowed to retain the benefit of that limitation where, as in
this case, they have ignored the very requirement that preserved it.

   2. In any event, the ten-point type standard should be applied
because it is the measure long ago adopted by the expert agency (CAB)
then responsible for determining the sufficiency of such notice on
passenger tickets.  Even before the Montreal Agreement, the CAB
promulgated a rule requiring foreign air carriers to include the
notice of liability rules in ten-point type.  See 28 Fed. Reg.
11775-11777 (1963) (codified at 14 C.F.R. 221.175(a)) (reproduced at
Pet. App. B7).  While that rule did not purport to construe the Warsaw
Convention itself, there is no reason why a court should apply a
different standard of adequacy in Warsaw Convention cases within our
jurisdiction.  Obviously some standard is necessary and it is better,
for passengers and airlines alike, to have a clear, settled standard
that it is to require courts and juries to engage in case-specific
factual inquiry into the "adequacy" of notice in individual cases.
Certainly such a fragmented approach would not further the Warsaw
Convention's goal of "uniformity" in international air transportation.
 Cf. TWA, Inc. v. Franklin Mint Corp., 466 U.S. at 256.

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   JOHN R. BOLTON

      Assistant Attorney General

   DONALD B. AYER

      Deputy Solicitor General

   RICHARD J. LAZARUS

      Assistant to the Solicitor General

   JUNE 1988

   /1/ This treaty, commonly referred to as "the Warsaw Convention,"
is formally titled the Convention for the Unification of Certain Rules
Relating to International Transportation by Air, Oct. 12, 1929, 49
Stat. 3000, T.S. No. 876, 137 L.N.T.S. 11, reprinted in 49 U.S.C. App.
1502 note.  The governing text of the Convention is in the French
language.  See App., infra, 1a-14a;  Air France v. Saks, 470 U.S. 392,
397 (1985).

   /2/ See Pet. App. B4-B6.

   /3/ At the Court's invitation (387 U.S. 901 (1967)), we filed a
brief expressing the views of the United States in Alitalia-Linee
Aeree Italiane, S.p.A. v. Lisi, 390 U.S. 455 (1968), aff'g by an
equally divided court, 370 F.2d 508 (2d Cir. 1966), which raised the
question whether the Convention's liability limitation applied in the
absence of adequate notice of the applicability of the Convention's
liability rules on the passenger's ticket.  The United States is also
a party in Pan American World Airways, Inc. v. Pampin Lopez, petition
for cert. pending, No. 87-750 (filed Nov. 6, 1987), which raises the
issue presented in this case.  In our brief in No. 87-750, we
recommended that the Court grant the petition in this case and hold
the petition in No. 87-750 pending the Court's decision here.

   #FN4

   /4/ This effort paralleled that concerning public aviation law
which culminated in the International Convention for Aerial
Navigation, adopted at Paris on October 13, 1919.  See Sack,
International Unification of Private Law Rules on Air Transportation
and the Warsaw Convention, 4 Air L. Rev. 345, 345-346 (1933);  Cha,
The Air Carrier's Liability to Passengers in International Law, 7 Air
L. Rev. 25, 28 (1936);  Ide, The History and Accomplishments of the
International Technical Committee of Aerial Legal Experts
(C.I.T.E.J.A.), 3 J. Air L. 27, 27 (1932);  see also D. Billyou, Air
Law 16-18 (2d ed. 1964).

   The United States sent observers to both the Paris and Warsaw
Conferences.

   /5/ We have reproduced in an appendix to this brief excerpts from
the documents relevant to the Warsaw Convention's drafting history
("travaux preparatoires").  The documents are in French and
translations (prepared with the assistance of the State Department)
are also reproduced.  References are to the appended English
translations, followed by a parenthetical indicating where the
original French language version (also appended) may be found.  The
original documents, including some translations into English
contemporaneously made, are located in the National Archives, in RG
59, Boxes 5620 and 5621.

   /6/ Model transportation documents were appended to CITEJA's final
report (see App., infra, 102a-104a).

   /7/ Efforts to revise the Warsaw Convention have continued.  The
United States and many other nations have signed the Guatemala City
Protocol of 1971 and the Montreal Protocols Nos. 3 and 4 of 1975, but
neither of these amended versions of the Warsaw Convention has been
ratified by the United States or entered into force.  The Guatemala
City Protocol amends the Convention by raising the liability limit to
approximately $100,000 per passenger.  It also makes significant
changes in the rules governing liability.  See generally, Mankiewicz,
Warsaw Convention:  The 1971 Protocol of Guatemala City, 20 Am. J.
Comp. L. 335 (1972).  The Protocol eliminates the due care defense for
passenger death or injury, deletes the provisions of the original
Warsaw Convention requiring delivery of a ticket and notice of the
liability limitation, and, unlike the Convention, does not provide for
unlimited liability where the carrier engages in wilful misconduct or
fails to deliver a ticket to the passenger.  The Guatemala City
Protocol, however, retains in modified form the carrier's right to
plead contributory negligence.  Montreal Protocol No. 3, in relevant
part, incorporates the preceding amendments made by the Guatemala City
Protocol, but expresses the $100,000 liability limitation in terms of
$100,000 Special Drawing Rights (currently worth approximately
$136,000).  See S. Exec. Rep. 97-45, 97th Cong., 1st Sess.4 (1981);
S. Exec. Rep. 98-1, 98th Cong., 1st Sess. 4 (1983).  Montreal Protocol
No. 4 amends and updates the cargo provisions of the Convention as
modified by the Hague Protocol.  See generally, G. Miller, Liability
in International Air Transportation 37-49 (1977).

   The Senate Committee on Foreign Relations previously recommended
approval of Montreal Protocols Nos. 3 and 4, S. Exec. Rep. 98-1,
supra, at 5, 6, coupled with a domestic plan to supplement the
convention's liability limitations.  On March 8, 1983, the Senate,
however, voted 50-42 to approve the protocols, falling short of the
two-thirds majority needed for approval.  129 Cong. Rec. 4241-4251
(1983);  see Air France v. Saks, 470 U.S. at 403.  Following that
vote, a motion to reconsider was entered (129 Cong. Rec. 4251 (1983)),
but the Senate has not yet reconsidered the question.  The Department
of Transportation and several other agencies are currently formulating
a new supplemental compensation plan for consideration by the Senate,
which would provide for unlimited per passenger recoveries for
economic loss.

   /8/ A comparison of the language contained in Article 3 and
Articles 8 and 9, concerning waybills, is to the same effect.  Article
8 lists those "particulars" that must be in an waybill, including a
statement of the Convention's liability rules (see App., infra,
10a-11a (4a)).  Article 9, like Article 4(2), specifically isolates
that particular, among several others, violations of which deprive the
air carrier of the Convention's liability limitation (see App., infra,
11a-12a (5a)).

   /9/ Nor, contrary to the lower courts' decision (Pet. App. A31), is
their reading mandated by Article 3(2)'s provision that "(t)he
absence, irregularity, or loss of the passenger ticket shall not
affect the existence or the validity of the contract of
transportation, which shall not affect the existence or the validity
of the contract of transportation, which shall none the less be
subject to the rules of this convention" (Pet. App. B1).  That
provision simply makes explicit that the rules of the Warsaw
Convention, including its provisions for loss of liability limitation
in certain instances, apply notwithstanding "the absence,
irregularity, or loss of the passenger ticket." The Reporter of
CITEJA's Second Commission made just this point on numerous occasions
in responding to the concern, expressed by some delegates, that
parties might, just as the lower courts did in this case, misread the
phrase as somehow contradicting the Convention's sanction provision.
See App., infra, 47a-49a (34a-37a), 52a-53a (39a-40a), 88a-91a
(69a-71a);  see also id. at 22a (16a), 23a (17a), 25a (19a) (original
language).  Indeed, this very concern prompted the CITEJA to amend the
sanction provisions concerned with passenger tickets (art. 3(2)),
baggage checks (art. 4(2)), and waybills (art. 18 (then numbered 17),
to eliminate any possible contention that a carrier could avoid any
sanction simply by not issuing any ticket in the first instance.  See
App., infra, 91a-92a (71a-72a);  see also id. at 57a (45a-46a).
Finally, both Articles 4(2) and 5(2) refute the lower courts'
suggestion that the omission of a particular from a travel document is
simply an "irregularity," which does not trigger the sanction
provision.  Those Articles contain the identical clause, yet the
Convention expressly denies the liability limitation where an air
carrier fails to set forth on the baggage check or waybill specified
particulars.  See App., infra, 8a-9a (2a), 9a-10a (2a-3a), 11a-12a
(5a).

   /10/ The relevant sentence provided that "(t)he passenger ticket
must also contain a statement that the transportation is subject to
the rules relating to liability established by this Convention" (App.,
infra, 95a (75a);  see id. at 96a (76a) (art. 4)).

   /11/ The principal modification adopted in the CITEJA final draft,
moreover, applied to passenger tickets, baggage checks, and air
waybills alike, and was intended to guard against an unduly narrow
reading of the sanction's scope.  The amendment addressed a Brazilian
delegate's concern that the statement in Article 5 (repeated in
Articles 3 and 4) -- that the absence, irregularity, or loss of a
document did not affect the existence or validity of the contract --
might be misconstrued to mean that an air carrier would lose the
liability limitation only if there was a defect in a document and not
when there was no document at all (App., infra, 88a-91a (68a-71a)).
Despite the Reporter's assurances that no clarifying language was
needed, the delegates voted to eliminate any possible ambiguity by
redrafting Article 18 and subsequently the corresponding phrases in
Article 3 and 4) to provide that the carrier lost the liability
limitation when the carrier failed to draw up a ticket, or when a
ticket containing the certain particulars was not drawn up (App.,
infra, 90a-92a (70a-72a) ("If, for international transportation, the
carrier accepts goods without a waybill having been made out, or if
the waybill does not contain all of the particulars set out in
Articles 9(a) to (g) inclusive, etc. * * *.")).  See note 9, supra.

   /12/ Proposals to weaken the sanction provisions were offered
during preparation of CITEJA's final draft, by a Greek delegate and
were rejected as they had been once before (Appp., infra, 51a-53a
(38a-40a), 82a-83a (62a-64a)).  Those proposals were exclusively
concerned with denying the limitation of liability for defects in
setting forth the particulars listed in Article 3's first paragraph.
These unsuccessful proposals therefore did not even suggest that the
sanction was inappropriate for failure to satisfy the notice
requirement, which was then set forth separately from the list of
particulars.

   /13/ The Greek delegation referred to negligent omissions in "the
place of issuance," "point of departure," "(carrier" name and
address," or "an intermediate stop point" (App., infra, 116a (111a)).

   /14/ For similar reasons, the Conference decided to modify the
wording of the Articles concerned with air waybills, including Article
9.  CITEJA's final draft, like previous drafts, listed the notice
requirement for waybills in Article 9, separately from both Article 8,
which listed the particulars, and Article 17, which contained the
sanction provision.  In order to "retain systematic agreement with the
other parallel articles" (presumably Articles 3 and 4), the Conference
delegates, at the behest of the drafting committee, placed the
contents of Article 9 as a particularr within Article 8 and, with
conforming amendments, renumbered as Article 9 what had been Article
17 (see Second International Conference on Private Aeronautical Law
Minutes 199-200 (R. Horner & D. Legrez trans. 1975) (hereinafter
Second International Conference Minutes);  see also J.A. 161).

   /15/ A Conference committee was responsible for organizing the
various amendments and describing each as a "question of substance,"
of either primary or secondary importance, or as a mere technical
question of wording" ("re'daction") (see Second International
Conference Minutes, 24-27;  J.A. 194-206).  The committee did not
directly place the Japanese amendment to Article 3 under any of these
categories, but the committee did include a cross-reference to the
Japanese amendment to Article 4 and indicated the need "to take up the
same general wording formula" (J.A. 197, 198 (emphasis added);  App.,
infra, 114a(109a)).  The absence of any discussion of the proposed
Japanese amendment of Article 3 in the Conference's minutes also
further suggests that the amendment was not regarded as substantive in
nature.

   /16/ The right to contract for a higher liability limitation was as
essential part of the Convention throughout its drafting history.  The
very first draft proposals included that right.  See App., infra, 22a
(15a-16a), 24a (18a-19a), 26a (20a).

   /17/ Common carrier law prevailing at the time also makes it
unlikely that the treaty drafters intended to draw a distinction
between passenger tickets, baggage checks, and air waybills.  The
requirement of notice for application of the liability limitation was
consistent with the then-settled principle of common carrier law
allowing a common carrier to limit its liability (in the absence of
negligence), if at all, only by express contract.  See 2 T. Michie, A
Treatise on the Law of Carriers Sections 1158-1183, 1328-1352 (1915);
1 R. Hutchins, A Treatise on the Law of Carriers Administered in the
Courts of the United States, Canada, and England Sections 401-402
(1906);  see also New Jersey Steam Navigation Co. v. Merchant's Bank,
47 U.S. (6 How.) 344, 382-385 (1848);  cf. Hague Minutes 67 (remarks
of Mr. Ambrosini (Italy)) ("His delegation also wished to have a
sanction in the case where the carrier did not deliver a ticket or the
ticket did not state that the carriage was subject to the Warsaw
Convention.  He recalled, in support of his position, that certain
legislations, among them the law of Italy, provided that any clause in
a contract limiting liability must not only be accepted by the parties
but also signed.  Therefore, to delete the sanction from the
Convention would be going too far.");  J.A. 225-226 (remarks of Mr.
Ambrosini).  The purpose of the express contract was to ensure that
the shipper (or passenger) had voluntarily agreed to the limitation.
The Warsaw Convention's notice requirement was far less rigorous than
the voluntariness inquiry engaged in by courts at the time (see 2 T.
Michie, supra, Sections 1178-1183, 1199-1219, 1354-1363;  R. Hutchins,
supra, Section 406-418;  see also New Jersey Steam Navigation Co., 47
U.S. (6 How.) at 382-383), presumably because the Convention was
intended to aid the then-fledgling aviation industry (cf. TWA, Inc.,
v. Franklin Mint Corp., 466 U.S. at 264-265 (Stevens, J., dissenting);
 H. Drion, Limitation of Liability in International Air Law 15
(1954)).  But the sanction scheme retained in the Convention shows
that some minimal evidence of voluntariness was required to
legitimatize such an extraordinary limitation on liability.
Significantly, there was no distinction in common carrier law in the
relevant liability rules governing passenger tickets, baggage checks,
and waybills.

   /18/ An even earlier formal expression of the government's view is
the CAB's promulgation in 1963 of a rule describing the notice that
must be included in a passenger ticket by "each air carrier and
foreign air carrier which, to any extent, avails itself of the
limitation on liability to passengers provided by the Warsaw
Convention." 28 Fed. Reg. 11775-11777 (1963) (codified at 14 C.F.R.
221-175(a) (emphasis added)).

   /19/ See Ludecke v. Canadian Pac. Airlines, Ltd., 98 D.L.R.3d 52
(Can. 1979), rev'g 53 D.L.R.3d 636 (Que. C.A. 1974), aff'g in part and
rev'g in part 12 Av. Cas. (CCH) Paragraph 17,191 (Que. Super. Ct.
1971);  67-70 United Kingdom and Northern Ireland Amici Br.; 67-70
Republic of Italy Amicus Br.; see also J.A. 306-320 (67-70 Canada
Amicus Br.).

   /20/ Respondent may mistakenly argue that we took a different
position in our submission to the Court in Lisi, where we advised the
Court that "the (CAB) has never been presented with any carrier
agreement purporting to fix the size of type or other typographical
details of the Warsaw Convention notice" (67-70 U.S. Amicus Br. at 9
(merits) (J.A. 305);  see also id. at 2 (J.A. 300).  We were not,
however, there addressing the significance of the Montreal Agreement,
which was not relevant to the disposition of Lisi because the airplane
accident at issue had occurred prior to that Agreement.  We were
instead simply refuting the air carrier's argument in Lisi that CAB
approval of a uniform ticket proposed by the International Air
Transport Association constituted a CAB determination that the Warsaw
Convention's requirement that a ticket provide notice of the
Convention's liability limitation had been satisfied.  In our brief at
the jurisdictional stage in Lisi, we also made clear that compliance
with the Montreal Agreement's notice requirement would satisfy the
Warsaw Convention's notice requirement, and argued that, for that
reason, the lower court's decision in Lisi was of little prospective
importance.  See 67-70 U.S. Amicus Br. at 9 (jurisdictional stage).

   /21/ The United States did, however, obtain formal assusrance of
foreign governments whose carriers were participating in the Agreement
that those governments approved of or at least would permit the
Agreement to go into effect subject only to termination on 12 months'
notice.  See Lowenfeld & Mendelsohn, supra, 80 Harv. L. Rev. at
593-594.

   /22/ The United States unsuccessfully sought at the Hague
Conference in 1955 to amend Article 3 of the Warsaw Convention to
specify more precisely the notice required, including the size of type
(larger than ten-point) (see J.A. 215-216).  The treaty negotiating
history suggests that the delegates preferred to allow each country to
regulate the notice required.  See Lowenfeld & Mendelsohn, supra, 80
Harv. L. Rev. at 513-515.  The absence in the Hague Protocol of a more
specific notice provision was one reason offered by those opposed to
Senate approval of the Protocol.  See id. at 513.

   APPENDIX