Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-20227

NJIDEKA E. MUONEKE

Plaintiff-Appellant

v.

COMPAGNIE NATIONALE AIR FRANCE also known as, Societe Air France

Defendant-Appellee

Appeal from the United States District Court 

for the Southern District of Texas

No. 4:05-CV-4289

Before WIENER, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Plaintiff-appellant Njideka Muoneke claims that the defendant-appellee

Compagnie Nationale Air France is liable for items of her luggage lost during

international carriage. In the prior appeal in this case, Muoneke v. Compagnie

Nationale Air France (Muoneke I), we reversed the district court’s grant of

summary judgment to Air France because we found that a genuine issue of

material fact existed concerning whether Muoneke had provided notice of her

United States Court of Appeals

Fifth Circuit

F I L E D

May 12, 2009

Charles R. Fulbruge III

Clerk
No. 08-20227

 247 F. App’x 570 (5th Cir. 2007) (per curiam) (unpublished). We note that there are 1

serious questions concerning the appropriateness of federal jurisdiction in this case, but our

prior opinion explicitly ruled on that question, id. at 571, and we do not indulge in “perpetual

re-examination of precisely the same issue of subject matter jurisdiction.” Free v. Abbott

Labs., Inc., 164 F.3d 270, 272-73 (5th Cir. 1999); see Christianson v. Colt Indus. Operating

Corp., 486 U.S. 800, 816 n.5 (1988). We therefore do not address the well-pleaded complaint

rule, see Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 315 (2005);

Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804, 817 (1986); Am. Well Works Co. v.

Layne & Bowler Co., 241 U.S. 257, 260 (1916); Louisville & Nashville R.R. v. Mottley, 211 U.S.

149, 153-54 (1908), or complete preemption, see Bernhard v. Whitney Nat’l Bank, 523 F.3d 546,

553 (5th Cir. 2008), because we cannot say that a “glaring error” occurred in this case. Free,

164 F.3d at 273. 

2

loss to Air France. This appeal arises out of the district court’s proceedings on 1

remand, which culminated in a judgment in favor of Muoneke. We reverse the

district court’s judgment in part and render judgment for Muoneke; we affirm

in part; we reverse and remand in part. 

I. FACTS AND PROCEEDINGS

Muoneke traveled from Houston, Texas to Lagos, Nigeria on an Air France

flight in 2004. During a change of planes in Paris, she was forced to check her

carry-on bag onboard the new aircraft at the insistence of Air France employees.

When Muoneke unpacked that bag after her arrival in Lagos, she discovered

that items were missing, including a digital camera and $900 in cash. After a

bench trial, the district court concluded that Muoneke’s loss totaled $1,242.79,

a sum that neither party contests on appeal. The court held that Air France was

liable for the loss because the airline had a “responsibilit[y] to safely transport

the baggage.” 

That was not, however, the end of the matter, because claims arising out

of damage to baggage during carriage aboard international flights are governed

by treaties that structure the carrier’s liability and impose monetary limits on
No. 08-20227

3

that liability. The district court determined that under the Warsaw Convention,

Air France was entitled to limit its liability for Muoneke’s baggage to 17 special

drawing rights (“SDRs”) multiplied by the weight of the “damaged baggage” in

kilograms. Having settled on liability, the correct formula for the monetary cap

on liability, and the quantum of damages, the district court then determined

that one SDR was equivalent to $1.58 at the time of trial and that the weight of

the luggage was 5 kilograms. Accordingly, it awarded Muoneke $134.30. In so

doing, the district court appears to have rejected Muoneke’s arguments that Air

France was at fault, rather than merely strictly liable for her loss and that her

baggage qualified as carry-on, rather than checked luggage. She asserted that

if either were the case, a higher damages cap should apply under the Warsaw

Convention. The district court also rejected Air France’s argument that it had

no liability at all because its contract of carriage expressly disclaimed liability

for damage to cameras, electronics, and cash in checked baggage. 

Muoneke then timely applied for an award of attorneys’ fees and costs.

The district court concluded that the fee amount requested by Muoneke was

reasonable, but Air France objected to any award of fees, arguing that they are

not recoverable. After supplemental briefing, the district court agreed with Air

France and declined to award fees, but did not rule on Muoneke’s application for

costs. This timely appeal followed. 
No. 08-20227

Grilletta v. Lexington Ins. Co., 558 F.3d 359, 364 (5th Cir. 2009) (per curiam) (internal 2

quotation marks omitted).

 See Lubke v. City of Arlington, 455 F.3d 489, 498 (5th Cir. 2006); Steel Coils, Inc. v.

3

M/V Lake Marion, 331 F.3d 422, 435 (5th Cir. 2003) (COGSA limitation of liability); Hamman

v. Sw. Gas Pipeline, Inc., 832 F.2d 55, 57 (5th Cir. 1987) (decided by a quorum) (per curiam)

(availability of attorneys’ fees). 

 Convention for the Unification of Certain Rules for International Carriage by Air art. 4

1, ¶ 1, May 28, 1999, ICAO Doc. 9740, reprinted in S. TREATY DOC. NO. 106-45, 1999 WL

33292734 (2000) [hereinafter Montreal Convention] (“This Convention applies to all

international carriage of persons, baggage or cargo performed by aircraft for reward.”); id. art.

55 & ¶ 1 (“This Convention shall prevail over any rules which apply to international carriage

by air: 1. between States Parties to this Convention by virtue of those States commonly being

Party to (a) the Convention for the Unification of Certain Rules Relating to International

Carriage by Air Signed at Warsaw on 12 October 1929 (hereinafter called the Warsaw

Convention) . . . .”). 

4

II. ANALYSIS

1. Standard of Review

“The standard of review for a bench trial is well established: findings of

fact are reviewed for clear error and legal issues are reviewed de novo.” Which 2

convention governs Air France’s limitation of liability and whether that

governing convention provides a basis on which to award attorneys’ fees and

costs to Muoneke are questions of law, which we review de novo. 

3

2. Analysis

A. Applicable Convention

On appeal, Muoneke claims that the district court erred by applying the

Warsaw Convention’s liability cap, rather than that of the Montreal Convention.

We agree. By its terms, the Montreal Convention supersedes the Warsaw

Convention and governs Air France’s liability in this case. The United States 4

Senate ratified the Montreal Convention on September 5, 2003, and the treaty
No. 08-20227

 Ehrlich v. Am. Airlines, Inc., 360 F.3d 366, 372 (2d Cir. 2004) (citing Press Statement, 5

United States Department of State, Ratification of the 1999 Montreal Convention (Sept. 5,

2003); Media Note, United States Department of State, Entry Into Force of the 1999 Montreal

Convention (Nov. 4, 2003)). 

 Compare Montreal Convention art. 22, ¶ 2 (“In the carriage of baggage, the liability 6

of the carrier in the case of destruction, loss, damage or delay is limited to 1000 Special

Drawing Rights for each passenger . . . .”), and id. art. 17, ¶ 4 (“Unless otherwise specified, in

this Convention the term ‘baggage’ means both checked baggage and unchecked baggage.”),

with Convention for the Unification of Certain Rules Relating to International Transportation

by Air art. 22, ¶ 2 Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876 (1934) [hereinafter Warsaw

Convention] (“In the transportation of checked baggage and of goods, the liability of the carrier

shall be limited to a sum of [17 SDRs] per kilogram.”), and id. ¶ 3 (“As regards objects of which

the passenger takes charge himself the liability of the carrier shall be limited to [332 SDRs]

per passenger.”). 

 Montreal Convention art. 26. 

7

5

entered into force on November 4, 2003. The damage to Muoneke’s baggage

5

occurred sometime during the two-day period of November 30-December 1, 2004,

more than a year after the Montreal Convention entered into force. That

convention’s liability cap (1000 SDRs per passenger for baggage claims)

therefore applies, not the Warsaw Convention’s cap (17 SDRs per kilogram of

damaged baggage for checked luggage). 

6

Air France’s first counterargument — that the applicable contract of

carriage limited Muoneke’s recovery to 17 SDRs per kilogram — is meritless.

The contract of carriage in fact incorporated the Montreal Convention, Article

26 of which states that “[a]ny provision tending to relieve the carrier of liability

or to fix a lower limit than that which is laid down in this Convention shall be

null and void.” Air France was therefore not entitled to cap its liability at 17 7

SDRs per kilogram when, as here, such a cap limits the carrier’s liability to less

than 1000 SDRs per passenger. 
No. 08-20227

 Id. art. 17, ¶ 2 (“The carrier is liable for damage sustained in case of destruction or 8

loss of, or of damage to, checked baggage upon condition only that the event which caused the

destruction, loss or damage took place on board the aircraft or during any period within which

the checked baggage was in the charge of the carrier.”); see S. TREATY DOC. NO. 106-45, 1999

WL 33292734, at *17 (2000) (explanatory note) (“Paragraph 2 [of Article 17 of the Montreal

Convention] makes the carrier liable for destruction, loss, or damage to checked baggage

caused by an event taking place on board the aircraft or while the baggage was in the charge

of the carrier. The carrier may avoid liability to the extent that it proves the damage resulted

from the inherent defect, quality, or vice of the checked baggage. . . . Thus, for checked

baggage, as under the Warsaw Convention and its related instruments, the carrier is strictly

liable for damages, subject to limited specified defenses.”). 

 Montreal Convention art. 27 (“Nothing contained in this Convention shall prevent 9

the carrier from refusing to enter into any contract of carriage, from waiving any defences

available under the Convention, or from laying down conditions which do not conflict with the

provisions of this Convention.”). 

 We do not address all limitation-of-liability questions under the Montreal 10

Convention today, only those presented by the carriage relationship at issue

6

Air France’s second counterargument — that the applicable contract of

carriage expressly disclaimed liability for the items at issue — is equally

meritless. Article 17 of the Montreal Convention provides for strict liability in

the case of damage to or loss of baggage. If Air France could contract out of 8

liability under Article 27 of the Montreal Convention, as it claims it did in its

9

contract of carriage with Muoneke, then Articles 17 and 26 would be

meaningless. Under Air France’s proffered reading, a contract of carriage

providing that “no items in checked baggage are covered” could effectively

eliminate all carrier liability for damage to baggage. Air France provides no

limiting principle that would harmonize an expansively construed Article 27

with Articles 17 and 26. Its reading is therefore unpersuasive, and we decline

to adopt it.10
No. 08-20227

 Although our prior opinion in this case made reference to the Warsaw Convention 11

(which perhaps accounts for the confusion on remand), the Warsaw Convention provision on

which we focused in that case — requiring Muoneke to provide notice to Air France of her loss

within a specific period of time — is identical in all relevant respects to the analogous

provision of the Montreal Convention. Accordingly, as we did not explicitly determine before

that the Warsaw Convention applied to Muoneke’s claim, and as it was not necessary for us

to do so implicitly to resolve the prior appeal, we are not bound on this question by the prior

opinion under the doctrine of law of the case. See Alpha/Omega Ins. Servs., Inc. v. Prudential

Ins. Co. of Am., 272 F.3d 276, 279 (5th Cir. 2001). Additionally, Air France probably waived

any law-of-the-case arguments and definitely forfeited any waiver-below arguments by failing

to assert and to brief them. Lyndon Prop. Ins. Co. v. Duke Levy & Assocs., LLC, 475 F.3d 268,

270 (5th Cir. 2007); cf. United States v. Palmer, 122 F.3d 215, 220-22 (5th Cir. 1997). 

 The district court did not address the issue of the correct date on which to fix the

12

exchange rate because the court considered the difference between the exchange rate at the

time of the loss and the time of trial too inconsequential to deserve resolution. Instead, it used

the more generous exchange rate, which was also the prevailing rate at the time of trial. As

the parties do not dispute the exchange rate used, we see no need to address the timing issue

in this case. We also note that inasmuch as the Montreal Convention does not use a perkilogram measure to calculate the appropriate liability limitation in this case, we have no need

to address whether the Warsaw Convention required the district court to use the weight of the

damaged items or the weight of the bag in which they were contained. 

7

Having established that the Montreal Convention should have been

applied, and using the district court’s SDRs-to-dollars exchange rate to which 11

the parties do not object, we cap Air France’s liability at $1580, which is in 12

excess of the amount Muoneke claims she is entitled to recover. We therefore

need not reach Muoneke’s other assertions of error. Given the simple

calculations involved, we also see no need to waste judicial resources by

remanding this case to the district court for correction of the judgment on this

point. Instead, we do it ourselves. The district court’s judgment is reversed, and

we render judgment in Muoneke’s favor and against Air France in the amount

of $1,242.79.

B. Fees and Costs
No. 08-20227

 See Boehringer-Mannheim Diagnostics, Inc. v. Pan Am. World Airways, Inc., 737

13

F.2d 456, 459 (5th Cir. 1984); Domangue v. E. Air Lines, Inc., 722 F.2d 256, 261 (5th Cir.

1984).

 Montreal Convention art. 22, ¶ 6 (“The limits prescribed in Article 21 and in this 14

Article shall not prevent the court from awarding, in accordance with its own law, in addition,

the whole or part of the court costs and of the other expenses of the litigation incurred by the

plaintiff, including interest.”); see S. TREATY DOC. NO. 106-45, 1999 WL 33292734, at *20

(2000) (explanatory note) (“This paragraph permits courts, in accordance with their own law,

to award to plaintiffs court costs, other litigation expenses (including attorneys fees) incurred

by the plaintiff, as well as interest, in addition to the amounts prescribed in Articles 21 and

22.” (emphasis added)). 

 Montreal Convention art. 22, ¶ 6 (emphasis added). 

15

8

We previously addressed the availability of attorneys’ fees and costs for

claims such as Muoneke’s when the Warsaw Convention governed, holding them

unavailable to prevailing plaintiffs under (1) that convention, (2) other federal

law, or (3) state law. In fact, any award of fees or costs in excess of the Warsaw

13

Convention’s liability cap would have been barred prior to the United States’

ratification of the Hague Protocol of 1955 through its ratification of Montreal

Protocol No. 4 in 1998. 

The Montreal Convention takes a different approach. It does not bar the

recovery of either fees or costs in excess of the liability caps found in Articles 21

and 22. But neither does it provide an independent basis on which such 14

amounts may be awarded. The plain language of the Convention states that a

court is not prevented “from awarding, in accordance with its own law, . . . the

court costs and the other expenses of the litigation.” Muoneke has identified 15

no federal law that permits an award of attorneys’ fees in this case, and the

general rule that we employ requires each party to bear his own attorneys’ fees
No. 08-20227

 Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247 (1975). 16

 We therefore need not pass on any questions of preemption or the use of state fee- 17

shifting statutes in federal court in this appeal. 

FED. R. CIV. P. 54(d). 18

 We cannot determine from the record on appeal whether the district court passed 19

on the question whether “the amount of the damages awarded, excluding court costs and other

expenses of the litigation, . . . exceed[ed] the sum which the carrier [had] offered in writing to

the plaintiff within a period of six months from the date of the occurrence causing the damage,

or before the commencement of the action, if that is later.” Montreal Convention art. 22, ¶ 6.

If the district court did not reach this issue, it must do so before an award of costs is

permissible that, when added to $1242.79, exceeds $1580. If the total of Muoneke’s costs plus

the damages she is to recover does not exceed $1580, the district court need not reach this

question. If a written settlement offer in compliance with Section 6 of Article 22 was made,

Muoneke may still recover costs, but only up to $1580 if Air France did not act or omit to act

with the “intent to cause damage or recklessly and with knowledge that damage would

probably result.” Montreal Convention art. 22, ¶ 5. To the extentthat the district court might

have resolved that fact question of intent or recklessness previously, we vacate that

determination because it was made under an erroneous legal standard, viz., the Warsaw

Convention rather than the Montreal Convention (although it is difficult to imagine that the

two Conventions, employing essentially identical language, establish different standards). See

Pullman-Standard v. Swint, 456 U.S. 273, 298-99 (1982). The district court may reach this

question again if doing so is necessary for purposes of awarding costs.

9

in the absence of a statute authorizing a fee award. Muoneke has not invited 16

our attention to any such statute, whether federal or state.17

Not so, however, for costs. The federal courts’ “own law” does provide for

an award of costs to a party in Muoneke’s position. Whether such an award 18

would exceed $1580 (the limit of Air France’s liability in this case) when added

to Muoneke’s recovery of damages is irrelevant under the Montreal Convention.

We therefore remand to the district court for the sole purpose of tabulating the

amount of costs to be awarded to Muoneke. 

19

Given the limited nature of our remand, and the typically uncontroversial

method by which the amount of costs is fixed, we anticipate no difficulties. This
No. 08-20227

10

panel nevertheless retains jurisdiction over this case until proceedings on

remand have concluded so that we may efficiently dispose of any issues

presented to us. It is long past time for this litigation over $1,242.79 to end. 

REVERSED and RENDERED in part; AFFIRMED in part; REVERSED

and REMANDED in part; jurisdiction RETAINED. Costs taxed against

appellee.