[Congressional Record (Bound Edition), Volume 149 (2003), Part 15]
[Senate]
[Pages 20812-20814]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

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                                TREATIES

  Mr. SUNUNU. Mr. President, I ask unanimous consent that the Senate 
proceed to executive session to consider the following treaties on 
today's Executive Calendar: Nos. 7, 8, 9, 10, 11.
  I further ask consent that the treaties be considered as having 
passed through their various parliamentary stages up to and including 
the presentation of the resolutions of ratification; that any committee 
conditions, declaration, or reservations be agreed to as applicable; 
that any statements in regard to these treaties be printed in the 
Record as if read; and that the Senate take one vote on the resolution 
of ratifications to be considered as separate votes; further, that when 
the resolutions of ratification are voted upon, the motion to 
reconsider be laid upon the table, the President be notified of the 
Senate's action, and that following the disposition of the treaties, 
the Senate return to legislative session.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The treaties will be considered to have passed through their various 
parliamentary stages up to and including the presentation of the 
resolutions of ratification.
  The resolutions of ratification are as follows:

       Resolutions of Ratification as approved by the Senate:

  Agreement with Russian Federation concerning Polar Bear Population 
                          (Treaty Doc. 107-10)

       Resolved, (two-thirds of the Senators present concurring 
     therein),
       Section 1. Senate Advice and Consent subject to a 
     condition.
       The Senate advises and consents to the ratification of the 
     Agreement Between the Government of the United States of 
     America and the Government of the Russian Federation on the 
     Conservation and Management of the Alaska-Chukotka Polar Bear 
     Population, done at Washington October 16, 2000 (T. Doc. 107-
     10, in this resolution referred to as the ``Agreement''), 
     subject to the condition in section 2.
       Sec. 2. Condition.
       The advice and consent of the Senate to the ratification of 
     the Agreement is subject to the condition that the Secretary 
     of State shall promptly notify the Committee on Environment 
     and Public Works and the Committee on Foreign Relations of 
     the Senate in any instance that, pursuant to Article 3 of the 
     Agreement, the Contracting Parties modify the area to which 
     the Agreement applies. Any such notice shall include the text 
     of the modification and information regarding the reasons for 
     the modification.

Agreement Amending Treaty with Canada Concerning Pacific Coast Albacore 
          Tuna Vessels and Port Privileges (Treaty Doc. 108-1)

       Resolved, (two-thirds of the Senators present concurring 
     therein),
       That the Senate advises and consents to the ratification of 
     the Agreement Amending the Treaty Between the Government of 
     the United States of America and the Government of Canada on 
     Pacific Coast Albacore Tuna Vessels and Port Privileges, done 
     at Washington May 26, 1981, and effected by an exchange of 
     diplomatic notes at Washington July 17, 2002, and August 13, 
     2002 (T. Doc. 108-1).

 Amendments to the 1987 Treaty on Fisheries with Pacific Island States 
                          (Treaty Doc. 108-2)

       Section 1. Senate Advice and Consent subject to a 
     Declaration.
       The Senate advises and consents to the ratification of the 
     Amendments to the 1987 Treaty on Fisheries Between the 
     Governments of Certain Pacific Island States and the 
     Government of the United States of America, with Annexes and 
     Agreed Statements, done at Port Moresby, April 2, 1987, done 
     at Koror, Palau, March 30, 1999, and at Kiritimati, Kiribati 
     March 24, 2002 (T. Doc. 108-2, in this resolution referred to 
     as the ``Amendments''), subject to the declaration in section 
     2.
       Sec 2. Declaration.
       The advice and consent of the Senate to the ratification of 
     the Amendments is subject to the following declaration:
       The advice and consent provided under section 1 is without 
     prejudice to any position the Senate may take with respect to 
     providing advice and consent to ratification of the 
     Convention for the Conservation and Management of Highly 
     Migratory Fish Stocks in the Western and Central Pacific 
     Ocean, signed by the United States on September 9, 2000.

   Convention for International Carriage by Air (Treaty Doc. 106-45)

       Section 1. Senate Advice and Consent subject to 
     reservation.
       The Senate advises and consents to the ratification of the 
     Convention for the Unification of Certain Rules for 
     International Carriage by Air, done at Montreal May 28, 1999 
     (T. Doc. 106-45, in this resolution referred to as the 
     ``Convention''), subject to the reservation in section 2.
       Sec. 2. Reservation.
       The advice and consent of the Senate to the ratification of 
     the Convention is subject to the following reservation, which 
     shall be included in the instrument of ratification:
       Pursuant to Article 57 of the Convention, the United States 
     of America declares that the Convention shall not apply to 
     international carriage by air performed and operated directly 
     by the United States of America for non-commercial purposes 
     in respect

[[Page 20813]]

     to the functions and duties of the United States of America 
     as a sovereign State.

   Protocol to Amend the Convention for Unification of Certain Rules 
     Relating to International Carriage by Air (Treaty Doc. 107-14)

       That the Senate advise and consent to the ratification of 
     the Protocol to Amend the Convention for the Unification of 
     Certain Rules Relating to International Carriage by Air, 
     signed at Warsaw on October 12, 1929, done at The Hague on 
     September 28, 1955 (T. Doc. 107-14).

  Mr. SUNUNU. Mr. President, I ask for a division vote on the 
resolutions of ratification.
  The PRESIDING OFFICER. A division is requested. Senators in favor of 
the resolutions of ratification will rise and stand until counted. 
(After a pause.) Those opposed will rise and stand until counted.
  On a division, two-thirds of the Senators present and voting having 
voted in the affirmative, the resolutions of ratification are agreed 
to.


                 montreal convention and hague protocol

  Mr. BIDEN. Mr. President, I am pleased to support the Convention for 
the Unification of Certain Rules for International Carriage by Air, 
known as the Montreal Convention, which was signed by the United States 
at a negotiating conference in that city in 1999. The convention 
provides the basic liability framework for international aviation and 
the air carriage of cargo and baggage. When it enters into force, the 
convention, for those nations party to it, will replace the current 
liability system, known as the Warsaw system, which had its origins in 
a 1929 treaty known as the Warsaw Convention. Since 1929, the Warsaw 
Convention has been amended numerous times by various protocols. But 
membership in the convention and the various protocols has not been 
universal, creating a patchwork quilt of treaty relations between and 
among nations. The Montreal Convention is designed to provide a clear 
and uniform system, and it is hoped that there will be widespread 
adherence to it.
  The Warsaw Convention system is antiquated in several respects, 
particularly with regard to the absurdly low limitations it contains on 
liability in cases of passenger injury or death. These limits may have 
made sense in 1929, when the airline industry was in its infancy. But 
those limits are anachronistic and indefensible. The airline industry 
matured long ago, and has long been capable of purchasing adequate 
liability insurance.
  To their credit, the major airline carriers agreed, by contract, to 
waive the limitations for liability for passenger injury or death in 
1996 in the ``IATA Inter-Carrier Agreement on Passenger Liability.'' 
Most of the airlines flying to and from the United States have taken 
this action, although several smaller airlines have not. The Montreal 
Convention will codify this inter-carrier agreement. Article 21 
provides for payment, in cases of personal injury or death, of up to 
100,000 Special Drawing Rights, currently about $140,000, for proven 
damages. Above that amount, there will be no limit on the amount an 
injured person or his or her heirs may obtain; the burden, under 
Article 21(2), will be on the air carrier to prove that it was not 
negligent or that the damage was solely due to the negligence or other 
wrongful act or omission of a third party.
  The Montreal Convention also creates a ``fifth jurisdiction'' in 
addition to the four jurisdictions provided under the Warsaw system. 
This additional jurisdiction, set forth in article 33(2), will ensure 
that, in nearly every case, Americans will be able to bring an action 
in a U.S. court.
  The Montreal Convention contains several other provisions that 
modernize the liability regime for cargo. These provisions were drawn 
from those in Montreal Protocol No. 4 (to the Warsaw Convention), which 
the Senate approved in 1998.
  The Montreal Convention is self-executing. No implementing 
legislation is required to fulfill U.S. obligations under it, and, like 
the Warsaw Convention, will provide the basis for a private right of 
action in U.S. courts for cases arising under it. Since the United 
States joined the Warsaw Convention in 1934, that convention has been 
the basis for hundreds of lawsuits in U.S. courts. Accordingly, a large 
body of judicial precedents has developed during these seven decades. 
The negotiators intended that, to the extent applicable, to preserve 
these precedents.
  A question arises whether the judicial doctrine of forum non 
conveniens applies to cases under the Montreal Convention. The circuit 
courts of appeals in the United States are divided on this question 
with regard to the Warsaw Convention. Compare Hosaka v. United 
Airlines, Inc., 305 F.3d 989 (9th Cir. 2020), cert. denied, 123 S. Ct. 
1284 (2003) with In re Air Crash Disaster Near New Orleans, Louisiana 
on July 9, 1982, 821 F.2d 1147 (5th Cir. 1987) (en banc), vacated and 
remanded on other grounds sub nom. Pan American World Airways, Inc. v. 
Lopez, 490 U.S. 1032 (1989). At the diplomatic conference, the United 
States delegation offered an amendment to the draft text during a 
meeting of the ``Friends of the Chairman's Group'' to make clear that 
the doctrine may be applied if consistent with the country's procedural 
laws. See 1 International Civil Aviation Organization, International 
Conference on Air Law, Montreal 10-28 May 1999, at 159 (2001) (Advance 
Copy of Minutes). This provision was not incorporated in the final text 
of the Montreal Convention. The Committee on Foreign Relations did not 
address this issue in its deliberations.
  The Senate is also considering the Hague Protocol of 1955, a protocol 
to the Warsaw Convention. It was first submitted to the Senate in 1959, 
but then returned to the President in 1967. The circumstances that led 
to the return of the Protocol related to the unreasonably low liability 
limits that I described earlier. The Protocol was resubmitted by 
President Bush in 2002.
  The Protocol is still relevant for this reason: even with entry into 
force of the Montreal Convention, the Warsaw system will remain in 
force among many nations, probably for several years. The Hague 
Protocol contains many provisions modernizing the Warsaw's systems 
rules on cargo shipment, and therefore remains important for shippers 
and consumers.
  In 1998, the Senate approved Montreal Protocol No. 4, a protocol to 
the Warsaw Convention; the United States became a party to the Protocol 
in March 1999. At the time, it was presumed that, in doing so, the 
United States also became bound by the provisions of the Hague 
Protocol. Article XVII of Montreal Protocol No. 4 states that 
``[r]atification of this Protocol by any State which is not a Party to 
the Warsaw Convention or by any State which is not a Party to the 
Warsaw Convention as amended at The Hague, 1955, shall have the effect 
of accession to the Warsaw Convention as amended at the Hague, 1955, 
and by Protocol No. 4 of Montreal, 1975.'' Several courts in the United 
States appear to have assumed as much. E.g., Cortes v. American 
Airlines, Inc., 177 F.3d 1272 (11th Cir. 1999), cert. denied, 528 U.S. 
1136 (2000; Motorola, Inc. v. Federal Express Corp., 308 F.3d 995 (9th 
Cir. 2002), cert. denied sub nom., Kuehne & Nagel, Inc. v. Motorola, 
Inc., 123 S. Ct. 2213 (2003). In submitting the Montreal Convention to 
the Senate, the Executive Branch stated that ``[i]n accordance with the 
provisions of Montreal Protocol No. 4, the United States also became 
bound by the provisions of The Hague Protocol when it ratified Montreal 
Protocol No. 4.'' See S. Treaty Doc. 106-45, at ix (2000).
  A decision in 2000 by the United States Court of Appeals for the 
Second Circuit has raised a question about whether the United States 
has treaty relations under the Hague Protocol with certain states. See 
Chubb & Son, Inc. v. Asiana Airlines, 214 F.2d 301 (2d Cir. 2000), 
cert. denied, 533 U.S. 928 (2001). The executive branch elaborated on 
this issue in its submission of the Hague Protocol in 2002. S. Treaty 
Doc. 107-14, at viii-ix (2002). Approval of the Hague Protocol at this 
time will end any uncertainty that may exist about the question of the 
status of the United States as a party to the Hague Protocol
  Mr. President, the Montreal Convention is an important achievement, 
the culmination of many decades of effort by the United States and many 
U.S. citizens to remove the unreasonably

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low liability limits of the Warsaw Convention. I commend the Clinton 
Administration negotiators for their fine work in 1999, as well as the 
many officials of the State and Transportation Departments, before and 
after 1999, who have worked to develop this treaty and present it to 
the Senate. The Montreal Convention is supported by all the main 
interests in the private sector--the airlines, passenger groups, cargo 
firms, and attorneys representing passengers. It deserves the support 
of the Senate.
  I want to thank Chairman Lugar and his staff for bringing this treaty 
forward at this time, and for ensuring Senate action prior to the 
August recess. I urge all my colleagues to support the Montreal 
Convention and the Hague Protocol.

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