powers "consistently with any obligation assumed by the United States in any treaty, convention, or agreement that may be in force between the United States and any foreign country. "Section 1108, 49 U.S.C. 1508, which proclaims the sovereignty of the United States over its airspace and provides for the navigation of foreign civil aircraft in that airspace, contains almost identical language. In performing its certificating function, the Board is governed by sections 401 and 402 of the Act, 49 U.S.C. 1371 and 1372. Section 401 of the statute provides for domestic and international route awards to United States air carriers. Section 402 of the statute regulates route awards to foreign air carriers. However, a decision by the Board to certificate an air carrier, domestic or foreign, to serve a route authorized by a bilateral air services agreement is purely advisory. Under section 801, 49 U.S.C. 1461, the President alone is responsible for final approval of such a certification. Moreover, section 1006 [49 U.S.C. 1486] precludes review of the President's action under section 801 with respect to foreign air carriers, and the Supreme Court has extended that immunity to § 801 decisions concerning domestic carriers in foreign commerce. Chicago and Southern Airlines, Inc. v. Waterman Steamship Corp., 333 U.S.... [103,] 114. The President will naturally consider international ramifications of Board recommendations when making his decision to approve or disapprove those recommendations. See excerpts, supra, of President Ford's December 24, 1976, letter returning to the Board the scheduled services portion of the Transatlantic Route Proceeding [not reproduced in this Digest].

Given the Board's advisory role, the realities of international aviation law, and the injunction of section 1102 that the Board "act consistently" with the obligations incurred by the United States in executive agreements, Bermuda II's alleged conflict with the Federal Aviation Act, Complaint, paragraph 9(a)–(f), is illusory.

Sec. 1102 of the Federal Aviation Act, P.L. 85-726, approved Aug. 23, 1958, 72 Stat. 797, as amended by P.L. 89-670, approved Oct. 15, 1966, 80 Stat. 937, 49 U.S.C. 1502, reads:

§ 1502. International agreements

In exercising and performing their powers and duties under this chapter, the Board and the Secretary of Transportation shall do so consistently with any obligation assumed by the United States in any treaty, convention, or agreement that may be in force between the United States and any foreign country or foreign countries, and shall take into consideration any applicable laws and requirements of foreign countries and the Board shall not, in exercising and performing its powers and duties with respect to certificates of convenience and necessity, restrict compliance by any air carrier with any obligation, duty, or liability imposed by any foreign country: Provided, That this section shall not apply to any obligation, duty, or liability arising out of a contract or other agreement, heretofore or hereafter entered into between an air carrier, or any officer or representative thereof, and any foreign country, if such contract or agreement is disapproved by the Board as being contrary to the public interest.

The 1946 Bermuda I agreement had established no specified limitations upon the number of carriers which might be designated to serve any one U.S. gateway. In a 1966 amendment thereto (signed May 27, 1966, TIAS 6019; 17 UST 683; entered into force May 27, 1966), the United States had agreed to consult with

the United Kingdom, should either party wish to designate additional carriers for a route in the 1946 agreement, as amended. Decisions to use their full certification authorities for particular routes were made by the individual airlines on economic grounds.

The Bermuda I agreement had also permitted the airlines of either country to add unlimited capacity (number of flights per route and number of seats per flight), subject to an ex post facto review to ascertain whether the total capacity offered had a reasonable relationship to the needs of the market. The overcapacity which had developed on North Atlantic routes was caused in part by too many flights per week on each route, and was stated to have been a principal source of British dissatisfaction with the Bermuda I agreement (Hill, “Bermuda II: the British Revolution of 1976," 44 Jl. Air Law and Commerce (1978) 111, 114-115).

Brief for Appellee, Greater Tampa Chamber of Commerce et al. v. Brock Adams, et al., No. 79-1123 (D.C. Cir., appeal filed Dec. 21, 1978), pp. 7-9.

In Benjamins v. British European Airways et al., 572 F.2d 913 (2d Cir. 1978), cert. den. 439 U.S. 1114 (1979), the U.S. Court of Appeals for the Second Circuit decided, by two to one, that the Warsaw Convention created a cause of action in cases of wrongful death or personal injury (article 17 of the Convention) or of loss of, or damage to, any checked baggage or goods (article 18 of the Convention), upon which suit might be brought in a Federal court under 28 U.S.C. 1331. In so holding, Chief Judge J. Edward Lumbard, Jr., reversed the district court's dismissal of the case for lack of Federal jurisdiction, which had been predicated upon earlier Second Circuit precedent, that the Warsaw Convention did not itself create a cause of action, but "only establishes conditions for a cause of action created by domestic law."

The suit had been brought in the U.S. District Court for the Eastern District of New York by a Dutch citizen, a permanent resident of California, for the wrongful death of his wife, also a Dutch citizen and resident alien in California (as well as for loss of baggage), caused by an air crash at Staines, England, on June 18, 1972. In reaching his decision, Judge Lumbard reexamined the history of the Convention, reviewed provisions of other Convention articles in addition to articles 17 and 18, and referred to the practice of other signatories of the Convention. He also took into consideration the creation by Congress in 1968 of the Judicial Panel on Multidistrict Litigation

and its authorization for creation of the procedures found in the Manual for Complex Litigation. Excerpts from his decision of March 6, 1978, follow:

IV

[W]e must determine whether any of the causes of action pleaded by Benjamins "arise under" the Warsaw Convention. It is true that in the past we have said that the Warsaw Convention does not create a cause of action. We believe, however, that a re-examination of the question requires a different answer.

A

At the time the United States adhered to the Convention, it seemed obvious to all that the Convention created causes of action for wrongful death or personal injury (Article 17), and for damage to baggage (Article 18). One court went so far as to say, "If the Convention did not create a cause of action in Art. 17, it is difficult to understand just what Art. 17 did do." Salamon v. Koninklijke Luchtvaart Maatschappij, N.V., 107 N.Y. S.2d 768, 773 (Sup. Ct. 1951), aff'd mem., 281 App. Div. 965, 120 N.Y. S.2d 917 (1st Dept. 1953)."

The view that the Convention does not create a cause of action is, in large part, attributable to two cases we decided in the 1950's, Komlos v. Compagnie Nationale Air France, 209 F.2d 436 (2d Cir. 1953), rev'g on other grounds, 111 F.Supp. 393 (S.D. N.Y. 1952), cert. denied, 348 U.S. 820, 75 S.Ct. 31, 99 L.Ed. 646 (1954), and Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir.), cert. denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957):

"The Second Circuit had spoken twice, the Supreme Court had denied certiorari, and in all subsequent American Warsaw cases it was either assumed or decided that the claim must be founded on some law other than the Convention itself."

Lowenfeld & Mendelsohn, The United States and the Warsaw Convention, 80 Harv.L.Rev. 497, 519 (1967).

The analysis on which this structure of holding rests is to be found in Judge Leibell's opinion for the district court in Komlos. In determining whether a cause of action had been assigned to an insurer or remained the property of an estate, Judge Leibell held that the action envisioned by article 17 was one created by domestic law, except in cases where the forum provided no analogous action. 111 F.Supp. at 401-02.

Judge Leibell relied heavily on a letter sent by Secretary of State Cordell Hull to President Roosevelt on March 31, 1934, recommending adherence to the Convention. In the course of a lengthy discussion of the benefits of adherence, Hull wrote:

"The effect of article 17 (ch. III) of the Convention is to create a presumption of liability against the aerial carrier on the mere happening of an accident occasioning injury or death of a pas

senger subject to certain defenses allowed under the Convention to the aerial carrier."

[1934] U.S.Av.Rep. 240, 243. This was seen by Judge Leibell as clear evidence that the Convention created only presumptions, not new causes of action.

In reversing Judge Leibell on another issue, we did not refer to the portion of his opinion discussed above, or, indeed, even mention the Warsaw Convention. 209 F.2d at 438-40. Nonetheless, in Noel, we followed our opinion in Komlos, which, we said, had "impliedly agreed" with Judge Leibell. 247 F.2d at 679. ... [I]t is apparent that however founded-Noel, as the law of this circuit, stands for the proposition that the Convention does not create a cause of action. See, e. g., Husserl v. Swiss Air Transport Co., 388 F.Supp. 1238, 1251-52 (S.D. N.Y. 1975).

Recently, an inconsistency has developed between this rule and another line of Warsaw cases we have decided. For example, in Reed v. Wiser, 555 F.2d 1079 (2d Cir.), cert. denied, [434] U.S. [922], 98 S.Ct. 399, 54 L.Ed.2d 279 (1977), we indicated-without addressing the question in the instant case-that "the Convention was intended to act as an international uniform law," id. at 1083, and that the substantive law of the Convention was binding on the forum, id. at 1092. The time has come to examine the question whether our view of the Convention as an internationally binding body of uniform air law permits us any longer to deny that a cause of action may be founded on the Convention itself, rather than on any domestic law.

B

1. The minutes and documents of the meetings, held in 1925 and 1929, which led to the adoption of the Convention do not specifically indicate whether the parties contemplated that an action for damages under the Convention would arise under the terms of the treaty or those of domestic law. What is made quite clear is the extent to which the delegates were concerned with creating a uniform law to govern air crashes, with absolutely no reference to any national law (except for the questions of standing to sue for wrongful death, effects of contributory negligence and procedural matters; see articles 21, 24 (2), 28 (2)).

The delegates were concerned lest major air crash cases be brought before courts of nations whose courts were not (according to current Western standards) well organized, nor whose substantive law (according to the same standards) progressive. To avoid the "prospect of a junglelike chaos," Reed v. Wiser, supra, 555 F.2d at 1092, the Convention laid down rules that were to be universally applicable. While it is not literally inconsistent with this universal applicability to insist that a would-be plaintiff first find an appropriate cause of action in the domestic law of a signatory authorized by article 28 to hear his claim, it is inconsistent with its spirit. This inconsistency is an argument against the rule of Noel and Komlos, for the Convention is to be so construed as to further its purposes to the greatest extent possible, even if that entails rejecting a literal

reading. Eck v. United Arab Airlines, Inc., 360 F.2d 804, 812 (2d Cir. 1966).

2. Other articles of the Convention throw some light on the question whether articles 17 and 18 create causes of action. Article 30 (3) provides that in the case of transportation by several carriers constituting one undivided transportation,

"[a]s regards baggage or goods, the passenger or consignor shall have a right of action against the first carrier, and the passenger or consignee who is entitled to delivery shall have a right of action against the last carrier, and further, each may take action against the carrier who performed the transportation during which the destruction, loss, damage, or delay took place...."

The most reasonable interpretation of this section is that articles 18 and 30 (3) create a cause of action against the appropriate carrier when more than one carrier is involved. See Seth v. British Overseas Airways Corp., 329 F.2d 302, 305 (1st Cir.), cert. denied, 379 U.S. 858, 85 S.Ct 114, 13 L.Ed.2d 61 (1964): "Thus the Convention not only imposes liability on an air carrier for the loss of checked baggage but also gives a passenger whose baggage is lost a right of action to enforce that liability. Seth's action, therefore, seems clearly to be one arising under a treaty of the United States." There is no reason to believe that the Convention's effect is any different when only one carrier is involved.

Article 24 has been cited by proponents of both views of the Convention. In the French version-the only official version-the article reads:

(1) Dans les cas prévus aux articles 18 et 19 toute action en responsabilité, à quelque titre que ce soit, ne peut être exercée que dans les conditions et limites prévues par la présente Convention. (2) Dans les cas prévus à l'article 17, s'appliquent également les dispositions de l'alinéa précédent ....

The unofficial translation reads:

"(1) In the cases covered by articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this Convention.

(2) In the cases covered by article 17 the provisions of the preceding paragraph shall also apply....

The crucial phrases, of course, are "however founded" (à quelque titre que ce soit"), and "conditions" ("conditions"). There is no internal evidence to indicate whether "however founded" was intended to refer to a number of possible domestic law sources or to a number of possible factual bases for the envisioned action.

As to "conditions," that term in English does imply that the source of the action must be sought elsewhere than the Convention, which supplies only conditions and limits. Nonetheless, there is some evidence for the view that the French has not been so translated here as to provide the best interpretation of the delegates' meaning, and