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Click here for the full text of this decision FACTS:Mbaba purchased a ticket to travel on Air France from Houston, Texas to Lagos, Nigeria. The trip was scheduled for June 15, 2002, and included a layover in Paris, France. Mbaba bought the ticket from Federal Express, his employer. The parties dispute whether Federal Express sold Mbaba a non-revenue ticket. When Mbaba checked in for the flight in Houston, he paid a $520 excess baggage fee, $130 for each of his four extra bags. His baggage ticket indicated that the bags were to be transported from Houston to Lagos. In Paris, Air France unloaded Mbaba’s baggage. Air France says that it had to do this because Mbaba was a non-revenue passenger. Meanwhile, Mbaba missed the scheduled flight to Lagos. Mbaba reclaimed the baggage and spent a night in the airport terminal waiting for the next flight. The next day, when Mbaba checked in for the new Lagos flight, an agent said Mbaba would have to pay $4,048.66 for the extra bags. In Paris, Air France charges excess baggage fees based upon the weight of the bags. Mbaba alleges that the agent refused to let him send the bags back to Houston and said that if Mbaba did not pay the charge, the bags would be “taken out and burned.” Mbaba payed the fee with a credit card. Mbaba filed this suit against Air France in Texas state court, alleging breach of contract, violation of the Texas Deceptive Trade Practices Act, and common law fraud. Air France removed the case to federal court. After a period of discovery, the district court granted summary judgment to Air France, holding that the Warsaw Convention preempted Mbaba’s state law claims. Mbaba appealed. HOLDING:Affirmed. Mbaba argues that his claims cannot be pre-empted, because his injuries are not contemplated by the Warsaw Convention. He focuses on the fact that his injury is not even within the broad categories of the convention: personal injury, lost or damaged baggage, or delay. Mbaba supports his argument with the text of Article 24, specifically the language stating that claims “can only be brought subject to the conditions and limits set out in this Convention.” He also relies on a portion of El Al Israel Airlines Ltd. v. Tsui Yuan Tseng, 525 U.S. 155 (1999), relating to a hypothetical involving an escalator. The hypothetical came from Tseng’s Court of Appeals decision. The 2nd U.S. Circuit Court of Appeals reasoned that if the convention excluded Tseng’s claims “then a passenger injured by a malfunctioning escalator in the airline’s terminal would have no recourse against the airline, even if the airline recklessly disregarded its duty to keep the escalator in proper repair.” In response, the Supreme Court stated, “[T]he Convention’s preemptive effect on local law extends no further than the Convention’s own substantive scope. A carrier, therefore, is indisputably subject to liability under local law for injuries arising out of that scope: e.g., for passenger injuries occurring before any of the operations of embarking or disembarking.” Finally, Mbaba relies on statements made by a senator that describe Montreal Protocol No. 4. as simplifying cargo rules without making controversial changes. Mbaba’s argument fails to overcome the text of the Convention and Tseng. First, the text of Article 24 specifically pre-empts claims resulting from the carriage of baggage “however founded.” Second, the language in Tseng surrounding the escalator hypothetical does not overcome other passages of Tseng specifically related to Montreal Protocol No. 4. Third, the senator’s comments are unpersuasive as they speak only to the general characteristics of the protocol. Finally, Mbaba’s recitation of analogies is unhelpful, because the court will not consider other scenarios. The court notes that this decision conforms with the view taken by the 2nd U.S. Circuit Court of Appeals in King v. American Airlines Inc., 284 F.3d 352 (2d Cir. 2002). In King, the court held that the Warsaw Convention preempted a discrimination claim based on an allegation that the plaintiffs were bumped from a flight because of their race. The King Court noted that the Supreme Court in Tseng “held that the Convention’s preemptive effect on local law extends to all causes of action . . . regardless of whether a claim actually could be maintained under the provisions of the Convention.” For these reasons, the Warsaw Convention pre-empts Mbaba’s claims. To hold otherwise would undermine the Convention’s goal of uniformity, the court states. OPINION:Fortunato P. Benavides, J.; Jones, C.J., Barksdale and Benavides, J.J.

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