¹ The Warsaw Convention is formally known as the “Convention for the Unification of Certain Rules Relating to International Transportation by Air,” opened for signature October 12, 1929, 49 Stat. 3000, T.S.No. 876, 137 L.N.T.S. 11 (adherence of the United States proclaimed October 29, 1934).

² Article 18 of the Convention reads:

(1) The carrier shall be liable for damage sustained in the event of the destruction or loss of, or of damage to, any checked baggage or any goods, if the occurrence which caused the damage so sustained took place during the transportation by air.

(2) The transportation by air within the meaning of the preceding paragraph shall comprise the period during which the baggage or goods are in charge of the carrier, whether in an airport or on board an aircraft, or, in the case of a landing outside an airport, in any place whatsoever.

(3) The period of the transportation by air shall not extend to any transportation by land, by sea, or by river performed outside an airport. If, however, such transportation takes place in the performance of a contract for transportation by air, for the purpose of loading, delivery or transshipment, any damage is presumed, subject to proof to the contrary, to have been the result of an event which took place during the transportation by air.

³ Article 22 of the Convention reads:

(1) In the transportation of passengers the liability of the carrier for each passenger shall be limited to the sum of 125,000 francs. Where, in accordance with the law of the court to which the case is submitted, damages may be awarded in the form of periodical payments, the equivalent capital value of the said payments shall not exceed 125,000 francs. Nevertheless, by special contract, the carrier and the passenger may agree to a higher limit of liability.

(2) In the transportation of checked baggage and of goods, the liability of the carrier shall be limited to a sum of 250 francs per kilogram, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of the value at delivery and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that that sum is greater than the actual value to the consignor at delivery.

(3) As regards objects of which the passenger takes charge himself the liability of the carrier shall be limited to 5,000 francs per passenger.

(4) The sums mentioned above shall be deemed to refer to the French franc consisting of 65 Vi milligrams of gold at the standard of fineness of nine hundred thousandths. These sums may be converted into any national currency in round figures.

⁴ In 1955, at The Hague, the conferees would agree only to a doubling of the limit to 250,000 Poincare francs or $16,600. Lowenfeld and Mendelsohn at 504-09. The United States unenthusiastically signed the Hague Protocol a year later, but did not present the treaty to the Senate until July 1959. Lowenfeld and Mendelsohn at 515. The Senate never ratified the Protocol because of its low limit, however, and ultimately the Kennedy/Johnson Administrations actually threatened United States denunciation of the Convention. This threat came in the wake of Congress' failure to enact a legislative package ratifying the Hague Protocol while compelling the purchase by all American air carriers of $50,000 in insurance for each passenger. To avoid United States denunciation, a conference met in Montreal in the spring of 1966. The result of this meeting was the so-called Montreal Agreement “which provided for absolute carrier liability up to $75,000 on all flights into or out of the United States.” Reed v. Wiser, 555 F.2d at 1087. Appeased, the United States withdrew its denunciation. However,it continued to press for an amendment to the Convention raising personal injury liability limits. In 1971, the parties promulgated the Guatemala City Protocol under which personal injury limits were to be raised to $100,000 at the then current exchange rate of $35 per ounce of gold.” Id. at 1089 n.12. However, the United States has not ratified that protocol

⁵ There was only one change made in this standard at the Hague in 1955. To avoid any confusion, the conferees deleted reference to the Poincare franc and defined the specified sums as referring “to acurrency unit consisting of sixty-five and a half milligrams of gold of millesimal fineness nine hundred.” Asser, Golden Limitations of Liability in International Transport Conventions and the Currency Crisis, 5 J. Mar. L. & Com. 645, 647-48 n.7 (1974). Since the United States never ratified the Hague Protocol, the old language still governs American courts. That change, however, is entirely formal, since the elimination of any reference to the French franc merely clarified the Convention's desire to use gold, a point never doubted in the United States.

⁶ See P. Samuelson, Economics, 686-88 (8th ed. 1970).

⁷ Id. at 690-91.

⁸ Id. at 691, Figure 36-1.

⁹ See Asser, supra note 6, at 650; Gold, International Monetary Law: Change, Uncertainty and Ambiguity, 15 J. Int'l L. & Econ. 323,340-41; Samuelson, supra note 7, at 698-99.

¹⁰ Id. at 641; Asser, supra note 6, at 651.

¹¹ In repealing the official price generally, Congress retained its use for the limited purpose of determining the value of gold held in the form of gold certificates. See 31 U.S.C. § 4056. The Senate noted that this was the “only domestic purpose for which it is necessary to define a fixed relationship between the dollar and gold … .” S. Rep. No.94-1295, 94th Cong., 2d Sess. 18, reprinted in [1976] U.S. Code Cong. & Ad. News 5935, 5966-67.

¹² Gold, supra note 10, at 345.

¹³ Ward, The SDR in Transport Liability Conventions: Some Clarifications,13 J. Mar. L. & Com. 1, 3 (1981).

¹⁴ See Sweden's Carriage by Air Act (1957), amendment to Chapter 9,§ 22, effective April 27, 1978, (translated and reprinted in App. at 57-61); see also the British Carriage by Air (Sterling Equivalents) Order of 1980, Statutory Instrument 1980 No. 281, effective March 21, 1980,(reprinted in App. at 62-63).

¹⁵ State of the Netherlands v. Giant Shipping Corp., Rechtspraak van de Week, 30, May, 1981, 321 (Supreme Court of the Netherlands, May 1, 1981) (translated and reprinted in App. at 64-93); Linee Aerea Italiane v. Ricciole (Rome Civil Court Judgment 609/1979, Nov. 14,1978), (translated and reprinted in App. at 95-108).

¹⁶ See Chamie v. Egyptiar (Cours d'appel Paris, Jan. 31, 1980) (translated and reprinted in App. at 171-91); Pakistan Int'l Airlines v.Compagnie Air Inter. S.A., (Cours d'appel Aix-en-Provence Oct. 31,1981) (translated and reprinted in App. at 156-70).

¹⁷ Boehringer Mannheim Diagnotecs, Inc. f/k/a Hycel, Inc. v. Pan American World Airways, Inc., 531 F.Supp. 344 (S.D. Tex. 1981).

¹⁸ Kuwait Airways Corp. v. Sanghi, Regular Appeal No. 54 of 1977(Civil Station, Bangalore, India, August 11, 1978) (reprinted in App.at 265-71.)

¹⁹ Zakoapolos v. Olympic Airways Corp., No. 256 of 1974 Ct. of App.; 3d Dep't., Athens, Greece (February 15, 1974) (translated and reprinted in App. at 251-54.)

²⁰ The sole remaining use of the last official price is in determining the value of gold held in the form of gold certificates. See note 12, supra.That is not relevant to the issues here.

²¹ CAB Internal Memorandum, Warsaw Convention Liability Limits,May 20, 1981 (App. at 32-38).

²² Appellant's reliance on dicta in our decision Reed v. Wiser, 555 F.2d at 1089 n.12, is misplaced. The Reed footnote implied a free market standard under the Guatemala City Protocol which the U.S. has not ratified.

²³ Ward, supra note 14, at 2.

²⁴ Id.

²⁵ Id. at 3.

²⁶ Given the lack of an internationally agreed upon standard of conversion, it might be argued that the Convention has been abrogated.However, treaties involve international obligations entered into by coordinate branches of the government and it is not the province of courts to declare treaties abrogated or to afford relief to those(including the parties) who wish to escape their terms. These are not matters for “judicial cognizance.” Whitney v. Robertson, 124 U.S.190, 194 (1887); see also Terlinden v. Ames, 184 U.S. 270 (1901). They belong to the executive and legislative departments because they are more properly the domain of “diplomacy and legislation, … not … the administration of laws.” Whitney v. Robertson, 124 U.S. at 195.

²⁷ The Convention establishes liability as well as limits it. Note 2, supra. Our holding is limited solely to the unenforceability of the limits and we express no view as to the severability of those limits from the rest of the Convention.o[Reproduced from the text issued by the Ministry of International Trade and Industry of Japan, July 1982.[The legislation of France, the Federal Republic of Germany, the United Kingdom and the United States has been carried in I.L.M. The French legislation at 21 I.L.M. 808 (1982); the German at 20 I.L.M. (1981) and 21 I.L.M. 832 (1982); the U.K. legislation at 20 I.L.M. 1219 (1981); and the U.S. at 19 I.L.M. 1003 (1980), 20 I.L.M. 1228(1981) and 21 I.L.M. 867 (1982).[The U.N. Convention on the Law of the Sea, done December 10, 1982,appears at 21 I.L.M. 1261 (1982). The Final Act of the Third United Nations Conference on the Law of the Sea appears at 21 I.L.M. 1245 (198