FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHUBB INSURANCE COMPANY OF 

EUROPE S.A., a foreign

corporation, on behalf of itself and

all other underwriters subscribing

to policy number CJ7317,

Plaintiff,

v. No. 08-55281

MENLO WORLDWIDER FORWARDING, D.C. No.

INC., a corporation, CV-06-07267-DSF

Defendant,  Central District of

v. California,

Los Angeles UPS SUPPLY CHAIN SOLUTIONS,

INC., a corporation f/k/a MENLO ORDER

WORLDWIDE FORWARDING, INC.,

Defendant-third-party-plaintiffAppellant,

v.

QANTAS AIRWAYS LIMITED,

Third-party-defendant-Appellee. 

Filed September 22, 2010

Before: Diarmuid F. O’Scannlain, Ronald M. Gould and

Sandra S. Ikuta, Circuit Judges.

15995
ORDER

The court invites briefs from amici curiae addressing the

question whether Article 35 of the Convention for the Unification of Certain Rules for International Carriage by Air, May

28, 1999, S. Treaty Doc. No. 106-45 (“Montreal Convention”), providing that “[t]he right to damages shall be extinguished if an action is not brought within a period of two

years,” is applicable to indemnity actions brought by defendants against third-party air carriers. The briefs may also

address some or all of the following questions: 

1. Article 35 is substantially identical to Article 29 of the

Convention for the Unification of Certain Rules Relating

to International Transportation by Air, Oct. 12, 1929, 49

Stat. 3000, T.S. No. 876 (“Warsaw Convention”). How

does precedent interpreting Article 29 of the Warsaw

Convention affect our interpretation of Article 35 of the

Montreal Convention? 

2. To the extent that such precedent is relevant, what does

it say? Specifically, should we look only to American

cases interpreting the Warsaw and Montreal Conventions,

or is there also relevant precedent from other signatory

nations?

3. The Montreal Convention differs from the Warsaw Convention in numerous respects, including the addition of

Chapter 5. How do these differences affect our interpretation of a defendant’s ability to bring third-party indemnity actions under the Montreal Convention? 

4. In interpreting treaties (as opposed to statutes), a court

must give effect to the intent of the “contracting” states.

Trans World Airlines, Inc. v. Franklin Mint Corp., 466

U.S. 243, 253 (1984). How does this principle affect our

interpretation of the effect of Article 35 on the ability of

a defendant to bring third-party indemnity actions?

15996 CHUBB INSURANCE v. UPS SUPPLY CHAIN
5. The Montreal Convention’s preamble states that a goal of

the Convention is the “harmonization and codification of

. . . rules.” How does this goal affect our interpretation of

the effect of Article 35 on the ability of a defendant to

bring third-party indemnity actions?

6. Article 37 of the Montreal Convention provides that

“[n]othing in this Convention shall prejudice the question

whether a person liable for damage in accordance with its

provisions has a right of recourse against any other person.” Is this “right of recourse” a subset of the “right to

damages” in Article 35, and thus covered under that provision, or is it a right different from the “right to damages” in Article 35, and thus not covered by that

provision?

Briefs shall be filed no later than 21 days after the date of

this order. Any person or entity wishing to file a brief as an

amicus curiae in response to this order is granted leave to do

so pursuant to Fed. R. App. P. 29(a).

CHUBB INSURANCE v. UPS SUPPLY CHAIN 15997
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