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